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2007(2) Crimes 499 (Cal.)
CALCUTTA HIGH COURT
Biswanath Somadder, J.
Susarma Mukherjee @ Adhikary & Anr. - Petitioners
versus
State & Ors. - Opposite Parties
C.R.R. No. 3243 of 2006 with C.R.R. No. 3244 of 2006
Decided on 7-11-2006
For the Petitioners:Mr. Satyajit Mondal and Sanjib Dutta, Advocates.
For the Opposite Party No. 2 :Mr. Biswaroop Chowdhury and Hiranmay Paik, Advocates.
IMPORTANT POINT
Magistrate while passing order u/s 144(2) Cr.P.C. should record as to how he arrived at his satisfaction based on material facts, about his apprehension of breach of peace for prevention of which he was exercising his power.
Headnote:Criminal Procedure Code, 1973 - Section 144 - Power to issue order in urgent cases of nuisance or apprehended danger - Scope of power of Magistrate - Magistrate has to form an opinion that there was sufficient ground for proceedings and immediate prevention or speed remedy was desirable - Impugned order did not show that Magistrate was satisfied that case warranted passing of order - No reasons were recorded and material facts were not set out nor Magistrate made any enquiry - For subsequent ex parte order whereby parties were directed not to remove the lock from premises, no reasons or material facts of the case appeared forthcoming as to why order was passed - Impugned orders were liable to be set aside and matter remanded to Magistrate. (Paras 6, 9 and 10)
Result : Petition allowed.
JUDGMENT
Biswanath Somadder, J. - Heard the learned Advocates of the respective parties. By consent of both the parties, the matters being C.R.R.No. 3243 of 2006 and C.R.R. No. 3244 of 2006 are taken up for hearing together.
2. The two applications under Section 482 of the Code of Criminal Procedure, are directed against the proceeding under Section 144(2) Cr.P.C. being M.F.Case No. 1687 of 2006, pending before the learned Executive Magistrate, Diamond Harbour, District-South 24-Parganas and particularly, in respect of two orders being Orders dated 30th August, 2006 and 1st September, 2006 respectively passed by the learned Magistrate in the said proceeding.
3. For the sake of convenience, the two orders being Orders dated 30.8.06 and 1.9.06 are set out hereinbelow: -
“Order dated 30.8.06 :
Heard petitioner.
To O/C M/Bazar P.S./B.L. & L.R.O. M/Bazar to cause enquiry and report by 29.11.06 O.Ps. to be informed by notice and S.R. of notice is to be submitted along with the report O/C. to ensure peace in the meantime.
Heard and perused. It has come out from the submission of the petitioner that the said shop house is situated on the land of P.W.D. road and the record of the land is not in the name of the petitioner and not also of the O.P. men.
O.P. is restrained from disturbing in any manner as alleged. O/C/M/Bazar is directed to ensure peace and compliance of the order.
Asstt. Engineer, P.W.D Diamond Harbour is directed to enquire and report as to whether the shop is constructed in the land of P.W.D. or not and if so, what action has been taken from their end in this connection.
Prodhan, Dhanurhat G.P. under M/Bazar Block is directed to report as to on which basis trade licence (if issued) has been issued to the petitioner.
Asstt. Engineer, Group Electric Supply, WBSEB, Lakshmikantapur is directed to report as to, on which basis electric connection has been provided to the petitioner.
Inform accordingly. To 29.11.06.”
“Order dated 1.9.06:
C.R. is put up today. 2nd Party appeared by Vakalatnama and files a petition.
Heard and perused the O.P. side against put up petition. Both parties are restrained from breaking the lock of the shop until further order.
The case will be heard on the next date in presence of both sides.
Inform accordingly.
4. From the mere reading of the two orders passed by the learned Magistrate, it appears that the learned Magistrate is totally silent on the aspect of his satisfaction and no reasons have been recorded as to why the order, being order dated 30.8.06 was passed by him, in a proceeding under Section 144(2) of the Code of Criminal Procedure. So far as other order is concerned, being the order dated 1.9.06, the learned Magistrate, (in the same Cr.P.C. Section 144(2) proceeding), restrained the parties from breaking the lock of the shop until further order.
5. Before proceeding any further, there is a need to look into the scope of a Magistrate’s power under Section 144 Cr.P.C., which can be found out from the said section itself.
“Section 144. Power to issue order in urgent cases of nuisance or apprehended danger. - (1) in cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speed remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management; if such Magistrate considers that such direction is likely to prevent, or tends to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life; health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under this section may, in cases of eme
