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Prodyot Kumar Mukherjee and ors. Vs. R. Gersappe Regional Manager, Bank of India - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1973CriLJ1361
AppellantProdyot Kumar Mukherjee and ors.
RespondentR. Gersappe Regional Manager, Bank of India
Cases ReferredMoolesh Jain v. Imumuddin Ansari
Excerpt:
- ordern.c. talukdar, j.1. this rule is at the instance of the second party-petitioners, who are 24 in numbers, and is directed against an order dated the 12th february, 1973 passed by shri h. n. sen, chief presidency magistrate, calcutta under section 144(2), criminal procedure code, in misc. case no. 134 of 1973 calling upon the officer-in-charge, hare street police station to see that no breach of peace took place and to enquire and report by 28-2-73; while restraining the members of the second-party in the meantime from coming within 10 yards from premises no. 23-a & b netaji subhas road, calcutta and creating disturbance or obstructions to the normal banking operations or in any way obstructing the employees, officers and others in discharging their duties and functions assigned to.....
Judgment:
ORDER

N.C. Talukdar, J.

1. This Rule is at the instance of the Second Party-Petitioners, who are 24 in numbers, and is directed against an order dated the 12th February, 1973 passed by Shri H. N. Sen, Chief Presidency Magistrate, Calcutta under Section 144(2), Criminal Procedure Code, in Misc. Case No. 134 of 1973 calling upon the Officer-in-Charge, Hare Street Police Station to see that no breach of peace took place and to enquire and report by 28-2-73; while restraining the members of the Second-Party in the meantime from coming within 10 yards from Premises No. 23-A & B Netaji Subhas Road, Calcutta and creating disturbance or obstructions to the normal banking operations or in any way obstructing the employees, officers and others in discharging their duties and functions assigned to them.

2. The facts leading on to the Rule may be put in a short compass. A dispute, said to have been high lighted by some action, arose between the employers and some employees of the Bank of India at Premises No. 23-A & B Netaji Subhas Road, Calcutta, culminating in an application filed on 12-2-73 before the learned Chief Presidency Magistrate, Calcutta by the First Party Opposite party, Shri R. Gersappe, Regional Manager (Eastern Region), Bank of India, Calcutta 23-A & B Netaji Subhash Road, Calcutta, praying for an ex parte order under Section 144(2) Criminal Procedure Code and for other reliefs. The learned Chief Presidency Magistrate, Calcutta by his order of the same date held that the situation disclosed in the petition called for an interim order, and directed the Officer-in-Charge, Hare Street Police Station to enquire and report by 28-2-73 and to see that no breach of peace took place in the meanwhile. In view of the urgency of the matter he further restrained the 25 members of the Second Party in the meantime from coming within 100 yards from the Premises No. 23-A and B, Netaji Subhash Road, Calcutta and creating disturbance or obstructions to the normal banking operations or in any way obstructing the employees, officers and others in discharging their duties and functions assigned to them. The Officer-in-Charge of the Hare Street Police Station was further directed to post sufficient number of police pickets to avert any imminent breach of peace. This order has been impugned by twentyfour members of the second party and forms the subject-matter of the present Rule. No interim order was passed when the Rule was issued.

3. Mr. Amiya Kumar Bose, Senior Advocate (with Messrs. J. K. Roy, Partha Mukherji and Tarun Chatterjee, Advocates) appearing in support of the Rule, on behalf of the second party petitioners made a four-fold submission the first three involving points of law and the fourth one being based on facts. Mr. Bose contended in the first instance that the order passed by the learned Chief Presidency Magistrate, Calcutta on 12-2-73 is not in conformance to the provisions of Section 144, Criminal Procedure Code, the sine qua non whereof are (a) the formation of an 'opinion' by the Court concerned that there is 'sufficient ground for proceeding' under this Section and immediate prevention or speedy remedy is desirable; and (b) a statement, in the written order to be served, of 'the material facts of the case' by reason of which the order was made. Mr. Bose contended that this Section does not confer an arbitrary power on the Magistrate in the matter of making an order under this Section and that the requirement to state the facts presupposes an enquiry on the part of the learned Magistrate concerned or a satisfaction on his part about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. There has been neither any enquiry nor a proper satisfaction about the facts on the part of the learned Chief Presidency Magistrate, Calcutta and as such the order passed is bad in law and repugnant. Mr. Bose relied on some cases in support of his contention and the same would be considered in their proper context. The second dimension of Mr, Bose's submission relates to a contravention of the principles of natural justice be- , cause of a denial of any opportunity to the members of the second party of being heard before the ex parte order of injunction was passed under Section 144(2) Criminal Procedure Code. Mr. Bose next contended that in view of the non-conformance to the provisions of Section 144, Criminal Procedure Code, the order of injunction passed is not in accordance with the procedure established by law and .as such is unwarranted and untenable. The fourth and last dimension of Mr. Bose's contention relates to facts, which according to Mr. Bose clearly rule out any emergency within the ambit of Sub-section (2) of Section 144, Criminal Procedure Code.

4. Mr. Sankardas Banerjee, Senior Advocate (with Messrs. Ananga Kumar Dhar, N. C. Shah and Miss Anwari Qureshi, Advocates) appearing on behalf of the second partyopposite party joined issue, raising a preliminary objection to the maintainability of the petition on which the present Rule was issued inasmuch as there has been no prior conformance to the provisions of Sub-section (4) of Section 144, Criminal Procedure Code, whereunder the aggrieved party should have moved the learned Chief Presidency Magistrate himself in the first instance for rescinding or altering the ex parte order passed by him. Mr. Banerjee next submitted that the first three dimensions of Mr. Bose's arguments are neither maintainable in law nor on merits; and that the fourth dimension, which is based on facts, is premature at this stage, inasmuch as the learned Chief Presidency Magistrate, Calcutta has merely passed an interim order on the materials available, fixing a date for the submission of the police report and further consideration. Mr. Banerjee also relied on some cases and the same will be considered at the proper stage.

5. Mr. N. R. Mukherjee, Advocate, appearing on behalf of the State also opposed the Rule. He submitted that a revisional application in this Court is premature at this stage because an interim order only was passed by the learned Chief Presidency Magistrate, Calcutta fixing 28-2-73 for the submission of the police report. From the very nature of the order therefore it is abundantly clear that it is only an interim order liable to further consideration on materials which may be adduced. He further contended that in cases of emergency there is no question of any previous notice to be given for passing an ex parte order under Section 144(2), Criminal Procedure Code. Affidavit-in-Oppo-sition, Affidavit-in-Reply, Supplementary Affidavit and Second Supplementary Affidavit were filed by the parties in support of their contentions.

6. The preliminary point raised by Mr. S. D. Banerjee on behalf of the second partyopposite party, is taken up first before I pass on to a consideration of the four dimensions of Mr. Bose's contentions. The objection in this context is based on the provisions of Sub-section (4) of Section 144, Criminal Procedure Code which lays down that

any magistrate may either on his own motion or on the application of any person aggrieved, rescind or altef any order made under this Section by hjfkiself or any magistrate subordinate to him or by his predeces-sor-in-office.

Mr. Banerjee fairly submitted however that his contention does not go to the extent of raising a bar in limine to the maintainability of a revisional application under Section 439, Criminal Procedure Code; it only pinpoints a bar in practice, if the provisions of Section 144(4), Criminal Procedure Code are not availed of before preferring a revisional application in the High Court. There was undoubtedly some cloud at one stage raised over the point at issue but the same has been removed by the imprimatur of judicial decisions. A reference may be made to the case of Shebalak Singh v. Kamaruddin Mondal reported in ILR 2 Pat 94 : (1922) 23 Cri LJ 549) wherein Mr. Justice Jawala Prasad observed that

This is only a practice and a vary desirable one; but there is no absolute bar in law to the party coming direct to us... when there is no right of appeal.

In the case of Pitchai (Respondent in Criminal Revision Case No. 285 of 1932), Petitioner v. M. M. Muhammad Atham Sam-matti and thirteen others. Respondents reported in ILR 56 Mad 149 : (1932) 33 Cri LJ 826. Mr. Justice Pakenham Walsh observed that .

In my opinion this argument that a revision petition cannot be filed to this Court must be rejected.

In a Calcutta case viz. in the case of Suren-dranath Kabashi v. Gostha Behari Kabashi reported in (1933) 37 Cal WN 962 : 35 Cri LJ 541, Mr. Justice Lort-Williams and Mr. Justice McNair observed that although the proper procedure is to proceed under section 144, clause (4), Criminal Procedure Code the High Court will, in a proper case, entertain an application under Section 439 direct against such order. In a later case of this High Court viz. the case of Purna Chandra Tewari v. Saogat Ali Mallick reported in : AIR1960Cal715 . Mr. Justice Niyogi rejected such a preliminary objection raised and observed that

the jurisdiction conferred by Section 144(4) of the Criminal Procedure Code is neither appellate nor revisional jurisdiction but a specjal jurisdiction conferred by a special provision of the statute and the failure to apply under Section 144(4) Criminal Procedure Code for the recission or alteration of the order under Section 144, Criminal Procedure Code is no bar to the filing of a revision petition against it.

In a more recent case decided on 10-7-70, viz. the unreported decision in the case of Lakshman Henirul v. Mannan Molla, ILR (1970) 2 Cal 519, this Court held that

this jurisdiction conferred undar Section 144(4) of the Code of Criminal Procedure is neither revisional nor appellate and the exercise of the same is not a condition precedent to the exercise of the powers of this Court under Section 439, Criminal Procedure Code.

It was further held that

the powers under Section 144(4) and Section 439 of the Code of Criminal Procedure are in my opinion, concurrent powers and Section 144(4) of the Code does not provide a special provision in a special statute, ousting thereby the jurisdiction of the High Court under Section 439 of the Code of Criminal Procedure if and when the subordinate court is not moved in the first instance.

I agree with the observations made in the above-mentioned cases. In fact, there are similar provisions in the Code of Criminal Procedure viz., Sections 145(5), 207-A(6), 209(2), 251-A(2) and 253(2) etc. and the said provisions, in no manner, circumscribe the overall jurisdiction of the High Court conferred under Section 439, Criminal Procedure Code, apart from its inherent powers to secure the ends of justice under Section 561-A of the Code and of general superintendence over all Courts and tribunals under Article 227 of the Constitution of India. It cannot be overlooked that the learned Chief Presidency Magistrate Calcutta in the present proceedings postponed further consideration till 28-2-73, by which date he directed the police to enquire and report. This is circumstance that justifies the moving of the revisional application in the High Court by the members of the Second Party. In the case reported in (1933) 37 Cal WN 962 : 35 Cri LJ 541, it was inter alia observed by their Lordships that

the Petitioner, Second Party however contends that in view of the Magistrate's order postponing the hearing for over 15 days, he was justified in coming direct to this Court. We think, in this circumstance, that this contention is reasonable.

I agree with the observations made in the aforesaid decisions and I hold that practice is but the handmaiden of law and cannot be allowed to override the latter and be her jealous mistress. The Rule that is being pleaded is but a Rule of practice and as was observed by this Court in the case of Bon Behari Mondol v. Bhusan Chandra Barui reported in : AIR1969Cal287 that

Practice is but the handmaiden of law and cannot be allowed to override the latter and be her jealous mistress. The High Court is indeed the palladium of justice and its stream must remain unfettered.

I agree with the observations made in the aforesaid cases and ultimately hold that the powers of this Court are untrammelled and unfettered and the overriding consideration is justice. If the circumstances call for an intervention, the revisional powers of this Court can be exercised irrespective of the fact that there is a concurrent jurisdiction. I accordingly overrule the preliminary point and hold that this revisional application is maintainable.

7. I will now proceed to consider the four dimensions of the arguments Taised on behalf of the second party-petitioners. The first dimension of Mr. Bose's arguments consists of two parts. The first part relates to the necessity of holding an enquiry before passing an order under Section 144, Criminal Procedure Code. It is quite true, as the Supreme Court held in the case of Babulal Parate v. State of Maharashtra reported in : 1961CriLJ16 that Section 144, Criminal Procedure Code does not confer an arbitrary power and the latter part of Section 144(1) 'makes the same clear. It would not be possible for the Magistrate to hold that 'there is sufficient ground for proceeding' and set out 'the material facts of the case' in the written order unless he makes an enquiry or is satisfied about the facts from personal knowledge or on a report made to him which he prima facie acccepts as correct. The opinion or satisfaction of the Magistrate, as mentioned in the Section, is therefore a mixed concept partly subjective and partly objective. The order impugned clearly shows however that the learned Chief Presidency Magistrate perused the petition filed before him and on being satisfied upon the materials disclosed that the situation called for an order he passed the same. This cannot be taken to be an arbitrary exercise of discretion. The Statute allows it and it would neither be expedient nor proper for this Court, to go behind this satisfaction at this stage. The answer to the second part of the submission relating to the requirement for stating the material facts of the case in the written order is again twofold. Firstly, the material facts are substantially there, though not in details in the order impugned, and is evident from the reference to the perusal of the petition and the situation disclosed thereby, and at this stage for the purpose of a prima facie satisfaction, the same is sufficient enough. The order as passed does refer to a petition disclosing a situation pin-pointing urgency and calling for an interim order. It should not be overlooked that the back-drop of the order is Chapter XI, Criminal Procedure Code relating to temporary orders in urgent cases of nuisance or apprehended danger and an assessment of such an order cannot be oblivious of that. Secondly in any event, such a statement of 'the material facts of the case' is not the sine qua non of an order passed ex parte under Sub-section (2) to Section 144, Criminal Procedure Code, the dominant consideration whereof is emergency, excepting a reference to the same. The words used in the Statute therefore do not lend assurance to Mr. Bose's contention.

8. A reference now may be made to the imprimatur of judicial decisions. Mr. Bose referred in the first instance to the case of Mahamaddi Mollah v. Empress, reported in 2 Cal WN 747. Amer Ali and Henderson, JJ., deciding the case held at pp. 748-749 that

The law provides that ordinarily in proceedings under Section 144, Criminal Procedure Code, notice should issue upon the person against whom the order was directed. It is only in cases coming under Sub-section (2) that service of notice is dispensed with.

The present proceedings are under Sub-section (2) to Section 144 and therefore the aforesaid decision does not support Mr. Bose's contention. The next case referred to on behalf of the petitioners is the case of S. S. Venkataramana Aiyar v. Emperor reported in AIR 1919 Mad 1004 : 19 Cri LJ 1004. Mr. Bose relied on the observations of Sadasiva Aiyar, J., at p. 1006 that 'I am clearly of opinion that 'the material facts' to be set out under Section 144, Criminal Procedure Code, in a case like the present to include when an ex parte order is purported to be passed, the circumstances showing why the Magistrate was temporarily unable to prevent a breach of the peace by intending peace breakers.

Mr. Justice Phillips the other Judge constituting the Division Bench however held at p. 10O9 that

I regret that I cannot agree with my learned brother's view that under Section 144, Criminal Procedure Code, it is necessary for a Magistrate to record in his order his reasons for considering the occasion to be one of emergency.

Mr. Bose then referred to the case of P. T. Chandra, Editor Tribune v. Emperor reported in AIR 1942 Lahore 171 =(43 Cri IJ 747) (Full Bench) wherein Chief Justice Young delivering the judgment of the Court held at p. 172 that

In this order no material facts, which would justify the order, have been given. To justify an order under Section 144 there must be a causal connexion between the act prohibited and the danger apprehended to prevent which the order is passed.

Mr. Bose's submission overlooked the material fact that the observations made by Young, C. J., are in the context of Section 144(1) of the Code as it is abundantly clear from the statement of the arguments in the case at p. 171 viz., that

The argument, which is confined to the interpretation of the words 'in the opinion of a District Magistrate' occurring in Section 144(1) being etc.

Mr. Bose lastly referred to the case reported in : 1961CriLJ16 and relied on the observations of Mu-dholkar. J., at p. 888 that ....

Clearly, therefore the section does not confer an arbitrary power on the Magistrate in the matter of making an order

and

requires the Magistrate ordinarily to serve a notice on the person against whom the order is directed and empowers him to proceed ex parte only where the circumstances do not admit of serving such a notice in due time.

Mr. Banerjee however relied on the observations of the Supreme Court at p. 889 that

We may also mention that though in an appropriate case a Magistrate is empowered to make an order under this section ex parte, the law requires that he should, where possible serve a notice on the person or persons against whom the order is directed before passing that order.

The aforesaid observations therefore rule out the contention of Mr. Bose, in a case of emergency, relating to notice and the powers (if the Magistrate to pass an ex parte order in an appropriate case. As regards the objection taken to the exercise of the power being arbitrary, the application filed and the consideration of the materials contained therein by the learned Magistrate do establish an enquiry leading on to a subjective satisfaction. I respectfully agree with the observations of the Supreme Court and I hold that the same does not support the submissions of Mr. Bose.

9. Mr. Bose made an ancillary submission in this context, viz., that the statutes encroaching on the liberty of the subject must be strictly construed and an effect must be given to the relevant words used therein. It is undoubtedly true that the mode of construction in cases encroaching on the liberty of the subject must be a strict one. In the case of Barnard v. Gorman reported in (1941) AC p. 378, Lord Wright cited with approval at p. 393 the well-known dictum of Pollock, C. B., in Bowditch v. Bal-chin reported in (1850) 5 Ex p. 278

in a case in which the liberty of the subject is concerned we cannot go beyond the natural construction of the statute.

I respectfully agree with the same and on a natural construction of Section 144 I hold that there has not been any interference with the liberty of the subject. The Supreme Court itself held in Babulal Parate's case, reported in : 1961CriLJ16 that

the provisions of the Section therefore which commit the power in this regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable.

In the case of Babulal Parate, Mudholkar, J., delivering the judgment of the Court further observed at p. 890 that

it cannot be said that by reason of the wide amplitude of the power which Section 144 confers on certain Magistrate which places unreasonable restrictions on certain fundamental rights.

The first dimension of Mr. Bose's contention accordingly fails.

10. The second dimension of Mr. Bose's submission is in the context of Section 144(2), Criminal P. C. and relates to a contravention of the principles of natural justice. Mr. Bose contended that an order under Section 144(2), Criminal P. C. is not an administrative order but an order passed in a judicial .proceeding and as such the members of the second party should have been given an opportunity of being heard before the ex parte order of injunction was passed under Section 144(2), Criminal P. C. The principle of audi alteram partem (hear the' other side) is as old as the hills and as was observed by Lord Reid in the case of Ridge v. Baldwin, reported in (1963) 2 All ER p. 66 that

the principle audi alteram partem goes back many centuries in our law and appears in a multitude of judgments of judges of the highest authority.

At one stage, a distinction was made between an administrative action, pure and simple and an administrative act which required the exercise of quasi-judicial discretion. In the case of Nakkuda Ali v. M. F. De S. Jayaratne reported in 1951 AC p. 66, the Privy Council held that it was not necessary to give an opportunity to the aggrieved person for making a representation where the act complained of was an administrative act. The Judicial Committee however appears to have gone back upon its earlier decision in Nakkuda Ali's case. In a series of later decisions Lord Upjohn took that view in laying down the triple test for the application of the principle audi alteram partem to a particular case in the case of Dura-yappah v. Fernando reported in (1967) 2 All ER p. 152. The 'wind of change' that no distinction could be made between administrative acts on the one hand and judicial or quasi judicial acts on the other was further pronounced in the observations of Lord Parker, C. J.. in the case of Re H. K., (1967) 2 WLR p. 962, Lord Denning M. R. in the case of Schmidt v. Secretary of State for Home Affairs reported in (1969) 2 WLR p. 337 and the decision of the Supreme Court in A. Kraipak v. Union of India reported in : [1970]1SCR457 . In a recent decision of the Calcutta High Court viz. in the case of Mihir Kumar Sarkar v. State of West Bengal reported in 75 Cal WN 831, P. B. Mukharji, C. J. delivering the judgment of the Court held that

Rules of natural justice can be excluded by a statute either expressly or by necessary implication.

It was further observed at p. 841 that

the real enquiry therefore in this appeal is whether the West Bengal (Requisition and Acquisition) Act, 1948 specifically or by necessary implication excludes the provision of notice as part of natural justice claimed by the Appellants.

and on an analysis, of the aforesaid statute, it was ultimately concluded that

there is conscious and deliberate departure in the Act from the natural justice giving prior notice in the case of requisition.

On a consideration of the aforesaid decisions, I hold that in view of the nature of the provisions of Section 144(2), Criminal P. C, enacted in the context of an' overriding emergency, there is no contravention of the principles of natural justice in passing an order ex parte. Some meaning and effect must be given to the words used by the Statute and the marked difference in the words incorporated in Sub-sections (1) and (2) to Section 144. Criminal P. C. is to be noted. As was observed by Lord Sumner in the case of Quebec Railway Light, Heat and Power Co. Ltd. v. Vandry reported in AIR 1920 PC p. 181 at p. 186 that

effect must be given if possible to all the words used for the legislature is deemed not to waste its words or to say any thing in vain.

Viscount Simon, L. C. held in the case of Nokes v. Doncaster Amalgamated Collieries reported in (1940) SC p. 1014 at p. 1022 that

the golden rule is that the words of statute prima facie be given their ordinary meaning.

I respectfully agree with the aforesaid observations and I hold that on the principles of interpretation of statute also the contention of Mr. Bose is untenable. It would widen the periphery of Section 144(2), Criminal P. C. beyond the intention of the legislature. The second dimension of Mr. Bose's contention also fails.

11. The next dimension of Mr. Bose's arguments is interlinked with the first dimension. In view of the imprimatur of judicial decisions and in view of Article 21 of the Constitution of India, there is no doubt that such orders must conform to procedure established by law. Lord Roche delivering the judgment of the Judicial Committee, observed in the case of Nazir Ahmad v. King Emperor, 1963 Ind App p. 372 at pages 381 and 382 that

the Rule which applies is a different and not less well-recognized Rule namely that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden.

Their Lordships of the Judicial Committee approved of the well-known principles laid down by Lord Jessel, M. R. in the case of Taylor v. Taylor reported in (1876) 1 Ch D p. 426 that

when a statutory power is conferred for the first time upon a Court and the mode of exercising it is pointed out it means that no other method is to be adopted.

Whether the ex parte order of injunction as passed in this case is or is not in accordance with the procedure established by law would however only depend on the factum of a non-conformance to the provision of Section 144, Criminal P. C. I have however held in disposing of the first dimension of the petitioners' contention that there has been no non-conformance to the provisions of the statute and as such I ultimately hold that there has been no non-conformance to any procedure established by Law, The order of injunction passed therefore is not bad and repugnant on that count. Accordingly the third dimension of Mr. Bose's submission does not succeed.

12. The fourth and last dimension of Mr. Bose's submission, which now abides consideration, is based on facts. The arguments in this context as advanced by the learned Counsel, appearing on behalf of the respective parties, are based on the affidavit-in-opposition, the affidavit-in-reply, the supplementary affidavit and the second supplementary affidavit filed by the parties in the High Court. The steps of Mr. Bose's reasoning in this context are that (a) there is no emergency in fact to warrant the ex parte order under Section 144(2), Criminal P. C. inasmuch as the dispute between the parties has been going on for over three weeks; (b) there was sufficient time to take recourse to the ordinary procedure provided by law; (c) the members of the second party, who are believers in non-violence and were merely exercising their legal rights to carry on a lawful agitation in an office of a nationalised bank whereto they belonged; (d) the dispute is essentially an industrial one arising out of the non-implementation of the terms of a bi-partite agreement between the parties as referred to in Annexure 'X' to the supplementary affidavit; (e) the order of their suspension is belated and mala fide; and (f) there was no fresh cause of action to rush to the criminal court on 12-2-1973. Mr. Banerjee, who was supported by Mr. Mukher-jee, however contended that these are all questions of facts which can properly be determined in the Court below on proper materials to be adduced in course of the proceedings and that the learned Chief Presidency Magistrate, Calcutta had in fact fixed the next date for a consideration on materials forthcoming. Mr. Banerjee further contended that the members of the second party could have availed of the provisions of Sub-section (4) to Section 144, Criminal P. C. to bring these materials to the notice of the learned Chief Presidency Magistrate, Calcutta whose order was neither arbitrary nor final. He further referred to a decision of the Supreme Court in the case of Railway Board, New Delhi v. Niranjan Singh, reported in : (1969)IILLJ743SC . Hegde, J. delivering the judgment of the Court observed at p. 969 that

the direction with which we are concerned in this appeal is that which prohibits the holding of meetings within the Railway premises including open ground forming part of the premises. That direction does not deprive the workers any of the terms guaranteed under Article 19(1). It merely prohibits them from exercising any of them within the Railway premises.

It was further observed that

the fact that the Indian Railways are State undertaking does not affect their right to enjoy their properties in the same manner as any private individual may do subject only to such restrictions as the law or the usage may place on them.

The plea taken by Mr. Bose is ultimately based on a mass of materials brought to light by affidavits and there is no reason why this Court sitting in revision should sift the same for the first time, more so when the legislature in its wisdom has already provided for a consideration of such materials at the proper stage and in a proper manner. It is difficult for this Court to take any view either way based on such mate rials at this stage, The statutory provision affords to the aggrieved party the proper avenue to bring such materials on the record for rescinding or altering the interim order of injunction. The learned Chief Presidency Magistrate Calcutta also had himself fixed 28-2-1973 as the next date by which the police was to report, obviously for a further and final consideration of the matter. This revisional application is therefore premature in the facts and circumstances of the case and the fourth dimension of Mr. Bose's argument also fails. I make it quite clear however that I make no observations as to (he merits of the respective contentions and I leave the same open for the learned Chief Presidency Magistrate, Calcutta to consider and decide on proper materials.

13. Before I part with the case I may observe that there has been some delay in fixing the next date, after the ex parte order was passed by the learned Chief Presidency Magistrate, Calcutta. It appears from the record that the ex parte order was passed on 12-2-1973 on the ground of emergency but the next date was fixed about sixteen days thereafter i. e. on 28-2-73 calling upon the police to enquire and report by that date. In a case where the dominant note is of emergency and where an ex parte order was already passed injuncting the members of the second party from doing certain acts in the meanwhile, the very purpose of emergency necessitated the fixing of an earlier date. The next date for submission of the police report and for further consideration on proper materials could have been fixed within three or four days instead of the considerable period that elapsed. In the case of Moolesh Jain v. Imumuddin Ansari reported in : AIR1968Cal364 although the facts are a little different, the principle laid down however is pertinent. In that case the application under Section 144, Criminal P. C. was filed on 5-8-1967 and the report was directed to be submitted on the 25th October, 1967, nearly three months after. A. K. Das, J. observed that 'the order betrays a lamentable lack of understanding of the seriousness of the allegations made, affecting personal liberty which might provoke breach of the peace and of the provisions of the Criminal P. C. for preventive steps against apprehended breach of the peace and disturbance of public tranquillity.' In proceedings under Chapter XI, of Criminal P. C, the dominant consideration is urgency and I accordingly agree with Mr. Bose that the aforesaid delay has been unfortunate and prejudicial. The members of the second party have also contributed to the same by not filing any application under Section 144(4), Criminal P. C. and there has been further delay. In any event the said delay may entitle the members of the second party to come up to the High Court by way of revision but cannot affect the merits of the interim order already passed on that ground only.

14. In the result', I direct that the case shall go back to the Court below for being disposed of on merits by the learned Chief Presidency Magistrate, Calcutta on the materials on the record, including those that may be disclosed by the police report already called for by 28-2-1973 and on the other materials that may be adduced by the parties; and I further direct that in view of the urgency involved, the case should be disposed of ex-peditiously within seven days of the date of arrival of the records in the Court below. The Rule is disposed of accordingly.

15. Let the records go down at once.


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