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2017 DIGILAW 444 (CAL)

Swapan Manna v. State of West Bengal

2017-05-04

JOYMALYA BAGCHI

body2017
JUDGMENT : 1. It is submitted on behalf of the petitioners that they are the lawful owners of the plot of land in question and a decree had been passed in favour of the predecessor-of-interest of the petitioner. It is also submitted that the private respondents have no right, title or interest in the said plot of land and are wrongfully interfering with the right of the petitioners to construct a boundary wall in and around the premises. Representations have been made to the police authorities to provide necessary police assistance for the purpose of lawful construction on their property, but no steps have been taken in the matter. 2. Mr. Gupta, learned Advocate appearing for the private respondents denies and disputes that the petitioners are the owners of the property in question and submits that his clients have filed a civil suit over the self same property. 3. In reply, Mr. Sinha Roy, learned Advocate for the petitioner submits that prayer for grant of injunction in favour of the private respondents was refused by the civil Court. Accordingly, he prays for direction upon the respondent police authorities to provide police guards at his cost to carry out construction on the land. He relies on the judgment of Dhananjoy Mondal & Ors. v. State of West Bengal & Ors. reported in 2007 (4) CHN 1046 in support of his contention. 4. Mr. Ganguly, learned Advocate appearing for the State submits that the dispute is civil in nature and a civil suit filed at the behest of the private respondents is pending by and between the parties. 5. I have considered the rival submissions of the parties. Admittedly, a civil suit is pending at the behest of the private respondents over the said plot of land. However, civil Court has refused to pass an order of injunction in their favour. It is the contention of the petitioners that they are entitled to carry on lawful construction on the said plot of land and there is a legal duty cast on the respondent police authorities to extend police assistance in the face of obstruction held out by the private respondents. The learned Advocate for the petitioner refers to regulations 666(c) and 669 of the Police Regulations of Bengal. Regulation 666 (c) and 669 reads as follows :- “666 (c). The learned Advocate for the petitioner refers to regulations 666(c) and 669 of the Police Regulations of Bengal. Regulation 666 (c) and 669 reads as follows :- “666 (c). Temporary police guards.- The Superintendent may at his discretion supply to another Government Department or, subject to regulation 669, to a private party such temporary police guards as he thinks necessary, provided that, if he proposes that such guards should be in excess of the sanctioned allotment of the district, he must obtain the sanction of the Provincial Government through the Deputy Inspector-General of the Range and the Inspector-General. An application for such sanction shall be submitted in a self-contained report which shall state- (i) the reasons for the entertainment of extra police; (ii) the number of such police to be entertained; (iii) the period for which they are expected to be required; and (iv) an estimate of the cost. 669. Additional Police for private parties under Section 13, Police Act, 1861. - The following principles shall be followed in dealing with applications from private parties for additional police under Section 13 of the Police Act, 1861:- (i) Additional police shall not be deputed unless the necessity for them has been established or when the desired result can be obtained by the institution of proceedings under the preventive sections of the Code of Criminal Procedure. (ii) The prevention of any breach of the peace is one of the regular duties of the police; and when there is a dispute the cost of additional police deputed for this purpose shall be met by the Provincial Government and never by a party to the dispute. (iii) The cost of additional police shall be charged to a private person in non-contentious cases only, that is to say, when a person acting within his rights finds himself in a position where the ordinary protection of the police is not sufficient. For example, it may be charged to a person on whose application additional police are deputed to keep order among people assembled at a mela or to guard money or other valuables which he has to transport from one place to another, particularly if it be through dangerous country. (iv) The Superintendent shall consult the District Magistrate before passing orders, whenever there is time to do so. (iv) The Superintendent shall consult the District Magistrate before passing orders, whenever there is time to do so. When the matter is very urgent, he may himself depute the necessary police, but he shall lose no time in informing the Magistrate and consulting him as to whether the applicant or the Provincial Government shall bear the cost. (v) In estimating the strength of a guard to be supplied to a private person, a Superintendent shall have regard to the question of providing its relief. (vi) Whenever police are supplied to private parties or persons on payment in cases where no extra establishment is entertained, immediate information should be sent to the Accountant-General of the fact, of the period for which the police are to be furnished and of the amount to be recovered. 6. From a conjoint reading of the aforesaid regulations it appears that the Superintendent of Police has discretionary power subject to Regulation 669 to provide temporary guard to a private party if he thinks it necessary to do so. Clause (i) of Regulation 669, however, provides that such guard shall not be deputed if the desired result may be obtained by institution of preventive proceeding under the Code of Criminal Procedure. In the instant case, the petitioners have made prayer to the police authorities to provide guard for making construction on the land in question. A civil suit is pending at the behest of the private respondents over the self same plot of land. I am of the opinion that the ratio of the aforesaid report is factually distinguishable in this case. No civil suit was pending with regard to the property in the said report and there was a declaration made by the Court that there was apprehension of breach of public peace and tranquility due to obstruction held out by the private respondents. No such conclusion may be arrived at from the materials on record and hence the ratio is inapplicable to the facts of the case. Moreover, nothing has been placed before me to show that preventive provisions of the Code particularly Section 144(2) CrPC would be inadequate to take care of the concern of the petitioners. No such conclusion may be arrived at from the materials on record and hence the ratio is inapplicable to the facts of the case. Moreover, nothing has been placed before me to show that preventive provisions of the Code particularly Section 144(2) CrPC would be inadequate to take care of the concern of the petitioners. It has to be borne in mind that the decision of the police authorities to provide temporary police guard for private purpose is subject to the restriction under Regulation 669 of the Police Regulation of Bengal particularly Clause (i) thereof which categorically enjoins that such discretion is to be exercised only if the preventive provisions of the Code of Criminal Procedure are found to be inadequate. Nothing has been pleaded either in the writ petition or in the representations preferred by the petitioners before the police authorities to show as to why and under what circumstances the preventive provisions of the code are rendered ineffective in the factual matrix of the case. Satisfaction with regard to apprehension of breach of public peace and tranquility in the area is to be arrived at before extending temporary police protection for private purpose under the scheme of the Code of Criminal Procedure. Such satisfaction is to be arrived at by the Executive Magistrate under Chapter X of the Code prior to institute of the preventive provisions under Sections 133, 144, 145 engrafted therein and the aforesaid statutory scheme cannot be supplemented by reference to non-statutory regulations like Regulation 666(c), as aforesaid. On the other hand, such regulation is to be read to be complementary to the scheme under the Code as provided in Chapter X thereof. Hence, I am of the opinion that the petitioners must approach the Executive Magistrate and exhaust his statutory remedy under Section 144 (2) CrPC seeking necessary relief including temporary police guard, if necessary, prior to invocation of the writ jurisdiction of this Court. 7. Since affidavits are not called for, the allegations contained in the petition are deemed not to have been admitted by the respondents. 8. With the aforesaid observations, the writ petition is disposed of. Writ petition is disposed of.