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2009 DIGILAW 13 (CAL)

Satyendra Kumar Singh v. STATE OF WEST BENGAL

2009-01-13

PARTHA SAKHA DATTA

body2009
Judgment :- (1) This application under Section 482 of the Cr.P.C. has been filed for quashing of a proceeding under Section 144(2) of the Cr.P.C. being M.P. Case No. 2521 of 2008 and also for setting aside the order dated 6th January, 2000 passed by the learned Executive Magistrate, Barrackpore in the district of 24- Parganas (N). (2) One Bhubaneswar Singh and another Atal Behari Singh filed a writ petition before this Court being W.P. No. 27429 (W) of 2008 against the State of West Bengal and Others including the Governing Body of Arya Pratinidhi Sabha, Bengal, the President of the said Sabha and the working President of the said Sabha praying for inter alia an order to restrain the respondents therein from giving effect to the letter dated 30th September, 2008 whereby one Ananda Kumar Arya, the President of the Arya Pratinidhi Sabha directed the Managing Committee to hand over all the relevant records to the new committee by superseding the alleged erstwhile committee and appointed an ad hoc committee for running the school. The present petitioner Satyendra Kumar Singh who claimed to be the administrator of the school, namely Titagarh Arya Vidyalaya was not the respondent by name in the writ petition. His Lordship Honble Justice Sadhan Kumar Gupta passed an interim order on 27th November, 2008 to the effect that the letter dated 30th September, 2008 which was issued by Ananda Kumar Arya, the alleged President of the Arya Pratinidhi Sabha, Bengal would not be given effect to without the leave of the Court. An application under CAN No. 10283 of 2008 was moved in connection with that writ application by the present petitioner for variation of the order dated 27th November, 2008 but the Honble Writ Court was not pleased to pass any order in variance of the order of 27th of November, 2008 and directed by the order dated 23rd December, 2008 that the application praying for vacating the interim order would be considered along with the writ petition. Then the present opposite party No. 2 Atal Behari Singh who claimed to be the Secretary of the school moved an application under Section 144(2) of the Cr.P.C. before the learned Executive Magistrate, Barrackpore who upon hearing the parties passed the following order on 6th of January, 2009 : "O.P. files hazira. P.P. files hazira. Seen the petition of the O.P. and considered. P.P. files hazira. Seen the petition of the O.P. and considered. Heard the learned Advocates of the petitioner and the opposite party. I.C. Titagarh P.S. is hereby directed to strictly abide by the High Courts order dated 27.11.2008 (vide W.P. No. 27429(W) of 2008 and give full protection to the petitioner so that he can discharge his responsibilities as Secretary of the school satisfactorily." (3) Being aggrieved with this order Satyendra Kumar Singh said to be the administrator of the school has moved this application for quashing of the proceeding on the ground that the order dated 6th of January, 2009 is not sustainable firstly because the Honble Writ Court either by the order dated 27th of November, 2008 or by the order dated 28th of December, 2008 did not say in express terms that the said Atal Behari Singh would be functioning as Secretary of the school and what His Lordship did was not to give effect to the letter dated 30th September, 2008 issued by the said Ananda Kumar Arya. It is submitted by Mr. Debasish Roy, learned Advocate appearing for the petitioner that before passing an interim order under Section 144(2) of the Cr.P.C. the learned Magistrate was required to be satisfied that circumstances did really exist which could lead to the apprehension that there might be breach of the peace unless a preventing order is passed ; and the learned Magistrate did not come to any satisfaction as to whether there was really any apprehension of the breach of the peace or tranquility. It is further submitted that it was not the business of the learned Executive Magistrate to direct the police to take such steps so that the opposite party No. 2, Atal Behari Singh could be functioning as Secretary of the school. Therefore, it is submitted that the order dated 6th of January, 2009 passed by learned Executive Magistrate, Barrackpore is absolutely illegal. (4) Mr. Bhattacharya, learned Counsel appearing for the opposite party No. 2 has made a lengthy submission and taken me to certain annexures to show that Ananda Kumar Arya ceased to be a functionary of Arya Pratinidhi Sabha, Bengal and he has been divested of his authority. (4) Mr. Bhattacharya, learned Counsel appearing for the opposite party No. 2 has made a lengthy submission and taken me to certain annexures to show that Ananda Kumar Arya ceased to be a functionary of Arya Pratinidhi Sabha, Bengal and he has been divested of his authority. A letter dated 4th of October, 2008 by the World Council of Arya Samaj has been produced to show that Bhubaneswar Singh is the President of Arya Samaj Mandir of Titagarh and.Shri Atal Behari Singh is the Secretary of the school. As Ananda Kumar Arya had no authority to issue any letter divesting Atal Behari Singh of his power to act as Secretary of the school the said letter of 30th of September, 2008 had no legal force and the Honble Writ Court passed an express order against the respondent from not giving effect to that letter. Therefore, Satyendra Kumar Singh could not claim to be an administrator of the school. It is submitted that as the letter of 30th of September, 2008 has not been given effect to pursuant to the order of Honble Writ Court, the learned Executive Magistrate did not commit any illegality in making the order impugned. My attention has been drawn to paragraph 8, 9 and 10 of the application under Section 144(2) of the Cr.P.C. where it has been alleged that that the present petitioners and their associates are causing disturbance in the smooth running of the school and they are trying to terrorize the students who have been panicked due to illegal disturbance of the present petitioner. (5) Mr. Roy on the order hand draws my attention to the decision in Babulal Parate v. The State of Maharashtra, AIR 1961 SC 884 and a decision of this Court in Dayamaya Bhattacharya v. Surya Kanta Surand Ors., 1989-C Cr LR (Cal) 86 where it has been laid down that before invoking the jurisdiction under Section 144(2) of the Cr.P.C. there must be a magisterial satisfaction as to apprehension of the breach ot the peace before an interim order is necessary to maintain the peace. It has been further submitted that without drawing up proceedings in appropriate manner the order impugned has been passed. (6) Having heard the learned Advocates for the parties I find that the moot point is who has right to run or administer the school. It has been further submitted that without drawing up proceedings in appropriate manner the order impugned has been passed. (6) Having heard the learned Advocates for the parties I find that the moot point is who has right to run or administer the school. Satyendra Kumar Singh by virtue of the letter of Ananda Kumar Arya claims to have assumed the charge of administrator of the school, while Atal Behari Singh claims to be functioning as Secretary of the school pursuant to the order of the Honble Writ Court which did not give effect to the letter of Ananda Kumar Arya dated 30th September, 2008. This Court must not hear the matter which is being heard in the writ Court. This Court is only to consider whether the Magistrates order has overstepped its limit. The Magistrates order is assailed on the ground that the learned Magistrate directed by the order dated 6th of January, 2009 that the I.C., Titagarh Police Station shall give full protection to the said Atal Behari Singh so that he can discharge his responsibilities as Secretary of the school. Who is running the school or who can run the school legitimately is the subject matter of the writ Court. The learned Magistrate does not appear to have committed any illegality by directing the I.C., Titagarh Police Station to strictly abide by the High Courts order dated 27th November, 2008. No exception can be made to this part of the order of the learned Magistrate. Only question is whether the learned Magistrate was justified in directing the I.C., Titagarh Police Station to give protection to the opposite party No. 2 in order that the said opposite party No. 2 could discharge his responsibilities as Secretary. The matter of the fact is that the position as it has reached after passing of the order dated 27th of November, 2008 by the Honble Writ Court in W.P. No. 27429(W) of 2008 shall govern both the parties. The order dated 27th November, 2008 remained as it is by the subsequent order dated 23rd December, 2008 and the Honble Writ Court directed that the writ petition and the CAN No. 10283 of 2008 would be heard together. Therefore, whether Atal Behari Singh or the present petitioner is functioning as Secretary of the school or not is not to be considered in this application. Therefore, whether Atal Behari Singh or the present petitioner is functioning as Secretary of the school or not is not to be considered in this application. What is material is the forcefulness of the order of this Court passed in a writ jurisdiction on 27th November, 2008. (7) In the circumstances, I dispose of the application in the following manner:-The order dated 27th of November, 2008 and the order dated 23rd December, 2008 passed by the Writ Court shall govern the parties till the Writ Court decides the writ application and the connected application being CAN No, 10283 of 2008. The order of the learned Magistrate is modified to the extent as above. The learned Magistrate will hear both the parties and dispose of the application in accordance with law. (8) A copy of this order shall be sent to learned Executive Magistrate, Barrackpore, in the district of 24-Parganas (N) for information and necessary action.