PRODYOT KUMAR MUKHERJEE Vs. R GERSAFFE

JUDGEMENT

(1.) THIS Rule is at the instance of the Second Party-Petitioners, who are 24 in numbers, and is directed against an order dated the 12th February, 1973 passed by Shri k. N. Sen, Chief Presidency Magistrate, calcutta under Section 144 (2) Criminal procedure Code, in Misc. Case No. 134 of 1973 calling upon the Officer-in-Charge. Hare Street Police Station to see that no breach of peace took place and than enquire and report by 28. 2. 73; which restraining the members of the Second-Party in the meantime from coming within 100 yards from Premises No. 23a and B, Netaji Subhas Road, Calcutta and creating disturbance or obstructions to the normal banking operations or in anyway obstructing the employees, officers and others in discharging their duties and functions resigned to them.

(2.) THE facts leading on to the Rule may be put in a short compass. A dispute, said to have been high-lighted by some action, arose between the employers and some employees of the bank of India at Premises No. 23a and B netaji Subhas Road, Calcutta, culminating in an application filed on 12. 2. 73 before the learned Chief Presidency magistrate, Calcutta by the First Party-Opposite Party, Shri R. Gersappe, Regional Manager (Eastern Region), Bank of India, Calcutta, 23a and B Netaji subhas Road, Calcutta, praying for an exparte order under Section 144 (2)Criminal Procedure Code and for other reliefs. The learned Chief Presidency magistrate, Calcutta by his order of the same date hold that the situation disclosed in the petition called for an interim order, and directed the Officer-in-Charge, Hare Street Police Station to enquire and report by 28. 2. 73 and to see that no breach of peace took place in the meanwhile. In view of the urgency of the matter he further restrained the 25 members of the Second-Party in the meantime from coming within 100 yards from the Premises No. 23a and b, Netaji Subhas Road, Calcutta and creating disturbance of obstructions to the normal banking operations or in any way obstructing the employees, officers and others in discharging their duties and functions assigned to them. The Officer-in-Charge of the Hare street Police Station was further directed to post sufficient number of police pickets to avert any imminent breach of peace. This order has been impugned by twenty four members of the second party and forms the subject-matter of the present Rule. No interim order was passed when the Rule was issued.

(3.) MR. Amiya Nath Bose, Senior advocate (with Messrs. J. K. Roy, Partha mukharji and Tarun Chatterjee, Advocates) appearing in support of the rule, on behalf of the second party-petitioners made a four-fold submission-the first three involving points of law and the fourth one being based on facts. Mr. Bose contended in the first instance that the order passed by the learned Chief Presidency Magistrate, calcutta on 12. 2. 73 is not in conformance to the provisions of Section 144 Criminal Procedure Code, the sine qua non whereof are (a) the formation of an "opinion" by the Court concerned that there is "sufficient ground for proceeding" under this Section and immediate prevention or speedy remedy is desirable; and (b) a statement, in the written order to be served, of "the material facts of the case" by reason of which the order was made. Mr. Bose contended that this section does not confer an arbitrary power on the Magistrate in the matter of making an order under this section and that the requirement to state the facts; presupposes an enquiry on the part of the learned Magistrate concerned or a, satisfaction on his part about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. There has been neither any enquiry and a proper satisfaction about the facts on the part of the learned Chief Presidency magistrate, Calcutta and as such the order passed is bad in law and repugnant. Mr. Bose relied on some cases in support of his contention and the same would be considered in their proper context. The second dimension of Mr. Bose's submission relates to a contravention of the principles of natural justice because of a denial of any opportunity to the members of the second party of being heard before the ex pane order of injunction was passed under Section 144 (2) Criminal Procedure Code. Mr. Bose next contended that in view of the non-conformance to the pro visions of Section 144 Criminal Procedure Code, the order of injunction passed is not accordance with the procedure established by law and as such is unwarranted and untenable. The fourth and last dimension of Mr. Bose's contention relates to facts, which according to Mr. Bose clearly rule out any emergency within the ambit of sub-section 2 of Section J144 criminal Procedure Code.