Tripura High Court
Mr. P. Roy Barman vs Mr. S.S. Dey on 7 October, 2021
Bench: Akil Kureshi, S.G. Chattopadhyay
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HIGH COURT OF TRIPURA
_A_G_A_R_T_A_L_A_
WP(C)(PIL) No.17 of 2021
WP(C)(PIL) No.18 of 2021
For Petitioner(s) : Mr. P. Roy Barman, Sr. Advocate,
Mr. S. Lodh, Advocate,
Mr. Kawsik Nath, Advocate,
Mr. B. Paul, Advocate,
Ms. A. Debbarma, Advocate.
For Respondent(s) : Mr. S.S. Dey, Advocate General,
Mr. D. Bhattacharya, G.A., Mr. S. Saha, Advocate, Ms. Ayantika Chakraborty, Advocate.
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MR. JUSTICE S.G. CHATTOPADHYAY _O_ R_ D_ E_ R_ 07/10/2021 (Akil kureshi, CJ) Ordinarily we do not give detailed reasons for dealing with the question of admission of a petition and the interim relief prayed for. However, considering the issues involved, we would prefer to record some facts and our brief reasons for the order that we propose to pass. In both these public interest petitions the petitioners have challenged an order dated 20.09.2021 passed by Shri Rajib Datta as District Magistrate & Collector, West Tripura District prohibiting any kind of meeting/procession/public gathering by any political party in Sadar Police Sub-Division (East Agartala and West Agartala Police Station area) between 6 am of 21.09.2021 to midnight of 04.11.2021 in exercise of powers under Section 144 of Criminal Procedure Code. In the order it is Page 2 of 12 also recorded that in view of the nature of situation and with a view to ensure public peace and tranquility this order is passed ex parte and is addressed to the public in general.
WP(C)(PIL) No.17 of 2021 is filed by a practicing advocate of this Court. WP(C)(PIL) No.18 of 2021 is filed by a retired bank employee. Both of them do not claim any personal interest and seek to espouse the cause in general public interest.
Prima facie material on record would suggest that there were disturbances and damage to properties by certain crowds in the city of Agartala on 08.09.2021. On 14.09.2021 a member of one of the political parties had given an application to the police authorities of West Tripura District for granting permission to hold the meeting cum procession in the city on 22.09.2021 from 2 o'clock onwards in the afternoon. On 18.09.2021 the Sub-Divisional Police Officer, Sadar Police Sub-Division wrote to the Superintendent of Police, West Tripura District in connection with the said request letter voicing his apprehension of serious breach of peace and that "supporter of opponent political parties may try to commit mischief and there may similar riotic situation as witnessed in Melarmath area on 08.09.2021". He also referred to the approaching festival season in the State and "imposing (we believe he means impeding) threat from the 3rd wave of Covid-19" as additional ground for not permitting any Page 3 of 12 kind of meeting/procession/public gathering till completion of Dewali festivals.
On 18.09.2021 the Superintendent of Police, West Tripura wrote to the District Magistrate & Collector, West Tripura and virtually repeated the averments and suggestions of the SDPO and requested the District Magistrate & Collector to issue necessary order for not allowing any political programme in the jurisdiction of Sadar Police Sub-Division till completion of Dewali festival.
We may take judicial notice of the fact that a Writ Petition No.676 of 2021 was filed by a person interested in holding the political rally seeking direction to the authorities to grant such permission. This petition was taken up for preliminary hearing on 20.09.2021 before the learned Single Judge who posted the same to the next day. On 21.09.2021 the State authorities produced the order dated 20.09.2021 passed by the District Magistrate & Collector which is impugned in this petition. The petition was thereupon dismissed.
In these petitions, the challenge to the impugned order is primarily based on following grounds :
(i) That the District Magistrate & Collector, West Tripura did not carry out necessary inquiry, nor did he have sufficient Page 4 of 12 material before him to form an opinion that emergent situation required exercise of the powers imposing such restrictions.
(ii) The entire exercise was aimed at frustrating the attempt to hold a political procession and the order thus suffered from legal malice.
(iii) Restrictions of rights under Article 19(1)(b) can only be as provided in Clause 3 of Article 19 which refers to public order. In the present case, the Magistrate has stated that in order that to prevent breach of law and order such restrictions are necessary.
(iv) It is the contention of the petitioners that Article 19(1)(b) which guarantees the freedom to all citizens to assemble peacefully and without arms is the valuable fundamental right and cannot be curtailed without due process of law.
(v) In WP(C)(PIL) No.18 of 2021 three instances are cited by the petitioner pointing out that after the impugned restriction order was passed by the District Magistrate & Collector meetings and processions having political flavour were allowed. In two such cases, the meetings were held without a political banner but where important political personalities such as a Union Minister were present. In the Page 5 of 12 third instance, the procession was completely political but was carried out without any permission. In short, the petitioner has also alleged factual mala fides.
In support of their contentions, learned advocates for the petitioners have placed heavy reliance on the decision of the Supreme Court in case of Auradha Bhasin versus Union of India and others, reported in (2020) 3 SCC 637 in which in the context of severe restrictions of internet in the Kashmir Valley, the Supreme Court has examined the parameters for exercising powers under Section 144 of Cr.P.C at considerable length.
On the other hand, learned Advocate General has strenuously opposed these petitions on following grounds :
(i) According to him, the petitioners have not shown any personal interest, nor have shown cause of action and in absence of both these petitions must be dismissed as not maintainable.
(ii) He submitted that the restrictions imposed by the District Magistrate & Collector are localized and applied in the small area of the city of Agartala. His exercise of discretion Page 6 of 12 therefore must be viewed from the limited impact that the order may have.
(iii) According to the learned Advocate General, the entire issue was within the subjective satisfaction of the District Magistrate. Based on the reports of the SDPO and the SP and on the basis of his own inquiries he had formed an opinion that the restrictions in terms of Section 144 of Cr.P.C were necessary. The decision of the District Magistrate & Collector can also be justified in view of the recent disturbances in the city of Agartala which took place on 08.09.2021.
Learned Advocate General relied on following decisions :
(i) In case of Babulal Parate versus the State of Maharashtra and others, reported in 1961 SC 884;
(ii) In case of Madhu Limaye versus Sub-Divisional Magistrate, Monghyr and others, reported in 1970(3) SC 746;
(iii) In case of Ramlila Maidan incident, in re, reported in (2012) 5 SCC 1;Page 7 of 12
(iv) In case of Amit Sahni (Shaheen Bagh, in re) versus Commissioner of Police and Others, reported in (2020) 10 SCC 439.
At the outset we are not impressed by the argument of the learned Advocate General on the maintainability of the petitions. It is only when the petitioner concerned does not have any personal interest, that he may be qualified to bring a litigation in the nature of public interest. Private interests of a citizen are not allowed to mix with public interest litigation. Secondly, merely because presently no application by any political party or organization is pending before the authorities for grant of permission to hold a political rally or meeting in the concerned areas, would not by itself mean that the petition lacks in cause of action. The term cause of action has many elements and an order which can directly be targeted if ultimately the petition is allowed, cannot be the sole basis for judging the concept of a cause of action. What the petitioners are propounding before us is the right of the citizens in general to assemble peacefully and without arms. Any restriction of such right must be reasonable and for the reasons stated in Clause (3) of Article 19 of the Constitution. Without commenting on whether in the present case the petitioners have made out any cause for interference with the impugned order, we hold that the petitions in the nature of public interest are Page 8 of 12 maintainable. When a regular practicing advocate whom we consider to be responsible and hold in esteem, brings the cause before the Court, demonstrating no personal interest but espousing public interest, his petition cannot be dismissed as one filed by a busy body or for personal publicity.
The issues raised by the petitioners in these petitions are undoubtedly of considerable interest and importance. Any restriction on the fundamental rights of the citizens must be examined by the Court minutely when a challenge is brought before it. The question whether the impugned order passed by the Magistrate satisfies the statutory restrictions provided in Section 144 of Cr.P.C and the test of reasonable restrictions envisaged in Clause (3) of Article 20 of the Constitution, would be a matter of examination. As is well settled, the terms "law and order", "public order" and "security of the State" represent three concentric circles. The first being the largest and the last being the smallest. Thus, there is clear distinction between the concept of law and order and public order. What Clause (3) of Article 20 permits the State to impose reasonable restrictions in the fundamental right under Article 19(1)(b) is on the ground of public order and not mere law and order. In this context, the question may also arise whether the expression used by the Magistrate in the impugned order that such restrictions are imposed Page 9 of 12 being satisfied "that allowing any kind of meeting/procession/public gathering by any political party at present may deteriorate law and order situation ......" would pass the legal test. However, while considering this important issue, we cannot pick a sentence from the impugned order out of context and try to give a meaning restricted to such a sentence. The entire order would have to be read as a whole and we would verify for ourselves whether the order in question satisfies the test of preservation of public order. In case of the Superintendent, Central Prison Fatehgarh and another versus Dr. Ram Manohar Lohia, reported in AIR 1960 SC 633 the Supreme Court has observed "in that limited sense, particularly in view of the history of the amendment, it can be postulated that public order is synonymous with public peace, safety and tranquility". It would thus be open for the respondents to argue that the order of the Magistrate when seen as a whole, satisfies this crucial test.
The question of the subjective satisfaction of the Magistrate in forming his opinion would also be of considerable importance. While that be so, the Court would be equally conscious about several judicial pronouncements referred to and discussed in case of Auradha Bhasin (supra) putting considerable stress on the requirement of a strict scrutiny on the State exercise of powers of restricting the rights under Article 19(1)(b).
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While we do so, we would be confining ourselves to the order passed by the Magistrate since the reasons cited by the SDPO and the Superintendent of Police in their communications dated 18.09.2021 may form the basis for the formation of the opinion by the DM, nevertheless, his own satisfaction must be gathered from the order in question. In this context, we may also not be in a position to gather much assistance from the affidavit-in-reply filed by the respondents in which the deponent has cited additional reasons and grounds not quoted by the DM since as stated by the Supreme Court in the case of Mohinder Singh Gill and another versus Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851, the orders passed by the authorities must be supported on the basis of the reasons recorded and such reasons cannot mature with passage of time.
From the original file of the administration which the learned Advocate General had provided at our request and which we had perused, we gather that at one stage on 20.9.2021 the in-charge DM had written to the Home Secretary inquiring "whether the present situation/grounds stated by SP calls for promulgation of Section 144 as requested by SP". The Home Secretary had thereupon written to the DM on 20.09.2021 itself advising him that the DM is expected to act on material facts Page 11 of 12 available before him using his own wisdom. It was, thereupon, that the DM had made file notings which read as under :
"Gone through the report/recommendation of SP(West) & SDPO, Sadar and considering the daily situation report being submitted by SP, I have come to a conclusion that promulgation of 144 Cr.P.C is inevitable to control the situation. Please put up order as per direction."
Thereupon, the impugned order came to be passed on 20.09.2021 itself.
The petitioner in WP(C)(PIL) No.18 of 2021 has, as noted, cited three instances where despite the prohibitory orders, the restrictions imposed by the DM were bypassed. Since the time available with the state administration was very short in filing the affidavit before us, we do not hold the state administration in not being able to gather information on these factual aspects and meeting them in the affidavit filed.
Long and short of the whole discussion is that the issues raised by the petitioners require serious consideration. However, when the question of subjective satisfaction of the DM and the possibility of disturbances being caused in the city if certain political activities are allowed are raised, such issues cannot be decided summarily. At the same time, this and similar issues most often are likely to have short term effect. Merely because the event has passed, if the legality of the order is Page 12 of 12 not examined, the same may render the litigation infructuous. While therefore admitting the petitions but not granting interim relief to the petitioners, we clarify that we will examine the larger issues raised by the petitioners even though the validity of the impugned order of the DM may have expired by then. In other words, we will test the legality of the impugned order at length.
In the result, issue rule to the respondents, returnable for 15th November, 2021. Interim relief refused. It would be open to the respondents to file further replies by 5.11.2021. Petitioners may file composite rejoinders by the next date of hearing.
Ms. A. Chakraborty, learned counsel waived rule on behalf of the State-respondents.
(S.G. CHATTOPADHYAY), J (AKIL KURESHI), CJ Dipesh