RAJIB SAMANTA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution of India challenging an ex parte order dtd. 18/8/2023 passed by the Sub-Divisional Magistrate, Contai, Purba Medinipur in Misc. Case No.673/2023 under Sec. 144(2) of Cr.P.C. Further report filed on behalf of the State is taken on record.

(2.) Learned counsel representing the petitioner submits that the petitioner is the Mandal President of an opposition political party. His party wanted to hold a rally at Khejuri, Purba Medinipur on 19/8/2023. Accordingly, intimation was given to the local police station on 14/8/2023. On 18/8/2023 the concerned Sub-Divisional Magistrate promulgated an order under Sec. 144(2) of the Code in the same area making reference to the proposed rally by the petitioner. Thereafter the petitioner was constrained to change the date for such rally. It was now fixed on 26th of this month. This was intimidated to the Officer-in-Charge of Talpati Ghat Coastal Police Station who refused to give permission for holding rally on 18/8/2023 showing the promulgation of the order under Sec. 144 of the Code. This was only to curb the exercise of democratic rights by the petitioner and his partymen. The order under Sec. 144 of the Code does not even make any reference to the criminal cases that might have been instituted. In fact, in the alternative, it is submitted that the order does not survive the date i.e. 19/8/2023 because the language used went like this 'Promulgation of 144 Cr.P.C. '' '. 'On 19/8/2023 from 15.00 hrs. '' Reliance is placed on a decision of the Constitution Bench of the Hon'ble the Supreme Court in Babulal Parate v. State of Maharashtra and others, AIR 1961 SC 884. It is submitted that a mere likelihood or tendency would not do. The power conferred by the Sec. is exercisable only if the Magistrate is satisfied that immediate prevention of particular acts is necessary. There is no indication of the same in the impugned order. During panchayat election there had been violence in so many places. In fact, there had been more violence than in Khejuri. In several places, board formation had to be postponed to another date. At least in Khejuri, despite some incidents, board formation could be done on the date fixed i.e. on 10/8/2023. In those more affected places the Administration has not promulgated orders under Sec. 144 of the Code. The present promulgation of such order is malicious and is only meant to prevent the petitioner from holding a political rally.

(3.) Learned advocate for the State relies on the reports and submits that in the first report, reference has been made to registration of 4 criminal cases on 10/8/2023, 13/8/2023, 14/8/2023 and 18/8/2023. Because of the prevailing situation, the Administration thought it fit to promulgate an order under Sec. 144 of the Code. It is because the promulgation of such order that some normalcy is prevailing there. It appears from the second report filed by the State that 4/9/2023 and 5/9/2023 are fixed for formation of Sthayi Samity of the Panchayat Samity in and around Khejuri-II. The area mentioned by the petitioner for holding such rally is not sufficient to accommodate a huge crowd of about 10,000 supporters. I have heard submissions of the parties and have perused the writ petition and the reports filed by the State.