Level Playing Field For Political Parties: Calcutta High Court Allows Opposition Rally, Says S.144 CrPC Cannot Be Promulgated At The Drop Of A Hat

The Calcutta High Court recently set aside an order under Section 144(2) CrPC (apprehension of nuisance or danger), passed by Sub-divisional magistrate, Contai, preventing public gatherings, due to which the petitioner, an opposition party leader, was prevented from holding a political rally.

In setting aside the magistrate’s order, and laying down a comprehensive set of guidelines for the petitioners to hold their political rally, a single-bench of Justice Jay Sengupta held:

Promulgation of an order under Section 144 of the Code cannot be done at the drop of a hat. It has to be done by exercising more care and circumspection and with a better reasoning. Afterall, we are dealing with rights of the citizens of India. In view of the above, the impugned order passed under Section 144(2) of the Code cannot be sustained. Accordingly, the same is set aside. The duty of the Administration is to provide a level playing field to all political dispensations to hold rallies and processions. The law and order is a thing that the Administration would have to take care of. The circumstances do not appear to be such where a political rally or a meeting cannot be held.

Petitioners contended that they had initially wished to hold a political rally in Khejuri on 19^th August, and had applied for requisite permissions on the 14^th of August.

It was submitted that on the 18^th of August, the Magistrate issued an order u/s 144(2) CrPC in the same area, making a reference to the petitioner’s rally, due to which they had to reschedule the same to the 26^th of August.

Petitioners argued that the 144 CrPC order was issued only to curb their democratic rights, and that there was no reference made to any criminal cases that may have been filed due to the alleged unrest or danger being caused by the petitioners’ activities.

It was submitted that in any case, the magistrate’s order was improper, given the fact that various Supreme Court orders had reiterated that a “mere likelihood or tendency of violence would not be satisfactory for invoking 144 CrPC, and that the magistrate would need to be satisfied that issuing such an order would be necessary for preventing immediate acts.”

Petitioners finally submitted that during the recently concluded panchayat elections, there had been considerable violence in Khejuri, due to which even the panchayat board formation had to be postponed, yet no 144 CrPC orders had been promulgated.

The State on the other hand submitted that four criminal cases relating to the petitioner’s rally had indeed been registered, and only upon being satisfied with the prevailing situation, had the magistrate issued orders under 144 CrPC.

It was further submitted by the State that the area proposed by the petitioners for holding their rally would not be sufficient for accommodating an expected gathering of around 10,000 people.

Upon hearing submissions of both parties, the Court looked at the circumstances under which an order can be passed under section 144 CrPC by the jurisdictional magistrate, and whether such circumstances had been met in the present case. It observed:

The terms on which an order can be passed under Sections 144 or 144(2) of the Cr.P.C. are “… if such Magistrate considers that such direction is likely to prevent or tend to prevent obstruction, annoyance or injury to any person lawfully employed, or tender to harm life, health or safety …”

From the impugned order passed under Section 144(2) of the Code it does not appear that the above referred conditions have been taken into account. The only two considerations which are there in the prefatory part are that a political rally is to be held there and that there are chances of serious breach of peace and tranquillity normal functioning of this locality. Not even a particular incident or a criminal case has been referred to. As it appears from the report filed by the State, there is admittedly some normalcy in the situation. It also does not appear that from the date on which earlier meeting was cancelled till this day there had been any untoward incident in the locality.

Accordingly, the Court disposed of the petition by setting aside the 144 CrPC order and directed the petitioners to hold their rally on the 26^th of August, along with a spathe of directions for ensuring a peaceful and organised gathering.

Case: Rajib Samanta v The State of West Bengal & Ors.

Coram: Justice Jay Sengupta

Citation: 2023 LiveLaw (Cal) 235

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