STATE OF WEST BENGAL Vs. ANINDYA GOPAL MITRA

JUDGEMENT

(1.) The Court : There will be an order in terms of prayer (a) of the petition. Leave is given to the petitioner to stamp and punch the petition within one week after the reopening of the Court.

(2.) An application has been made for the stay of the operation of the order passed by the learned trial Judge in the writ proceeding which has wended its way before us in appeal. No copy of the judgment delivered by the learned trial Judge has been produced before us save the operative portion of the judgment. Ordinarily, and except for compelling reasons, we should not grant stay of operation of any judicial order without having an opportunity to go through the order. In view of the holidays for which the High Court is closed, it has not been possible for us to arrange for production of the records from the trial Court.

(3.) In view of an order promulgated under section 144 of Criminal Procedure Code, the Bharatiya Janata Party applied to the Commissioner of Police for permission to hold the public meeting at the Brigade Parade Ground on 11th April, 1993. The Commissioner, however, has refused permission. No one, including the Commissioner has ever noticed that the prohibitory order, which was then in operation was to expire before the 11th April, 1993, and, therefore, on the date the Commissioner has refused to grant permission he would have no scope to grant permission in view of the expiry of the prohibitory order before the 11th April, 1993. The refusal of the Commissioner to grant permission to the Bharatiya Janata Party to hold meeting on 11th April, 1993, though at that time there would be no prohibitory order in operation to operate till 11th April, 1993, clearly demonstrates non-application of mind on the part of the Commissioner of Police. From the arguments of the learned Counsel appearing for the parties, it appears that the learned Judge has set aside and quashed the order of the Commissioner of Police on this ground also. We think that the learned Judge was right. We also find an additional reason to support the order of the learned Judge quashing the order of the Commissioner of Police. Assuming that the prohibitory order was to operate on 11th April, 1993, also, what the Bharatiya Janata Party prayed for was alteration by way of relaxation of the said order. Such an alteration could be refused, but we are afraid that such refusal ought not to have been made without giving the applicant, the Bharatiya Janata Party, an opportunity of being heard in accordance with the provisions of section 144(7) of the Criminal Procedure Code. No such opportunity was admittedly granted. As at present advised, we are of the view that the order of the Commissioner was absolutely inappropriate and was liable to be quashed.