Calcutta High Court (Appellete Side)
Md. Danish Farooqui vs Election Commission Of India & Ors on 22 April, 2026
22.04.2026
Item No. 34
PG/RP/KS
Ct. No.1
W.P.A. (P) 192 of 2026
Md. Danish Farooqui
Versus
Election Commission of India & Ors.
Mr. Kalyan Bandyopadhyay, Sr. Adv.
Mr. Rahul Kumar Singh
Mr. Ratikanta Pal
Ms. Deshma Ghosh.......For the Petitioner
Mr. Dama. Sheshadri Naidu, Sr. Adv.
Ms. Anamika Pandey
Mr. Abhinabha Thakur
Mr. Ghanashyam Pandey
.....For the Election Commission of India
Mr. Kishore Datta, Ld. Adv. General
Mr. Swapan Banerjee, Ld. A.G.P.
Ms. Sumita Shaw
Mr. Diptendu Narayan Baneerjeee
Mr. Soumen Chatterjee .......For the State
Mr. Joydip Kar, Sr. Adv.
Mr. Biswaroop Bhattacharya
Mr. Sandip Dasgupta
Mr. Saaqib Siddiqui
.....For the Respondent Nos.5 & 6
DICTATED BY SUJOY PAUL, CJ.:
1. Parties are represented through their respective
learned counsels.
2. Heard on admission and interim relief.
3. Mr. Bandyopdhyay, learned senior counsel
appearing for the petitioner by drawing our
2attention to the order of Police Observer in the
office of the Chief Electoral Officer (CEO), West
Bengal bearing no.5607-Home (Elec.) dated
21.4.2026 (annexure P1) filed with
supplementary affidavit submits that in the
said memo it is mentioned that “It has been
observed from various quarters that persons,
whose names are mentioned in the enclosed
list (Annexure -A) are actively involved in
intimidating voters and creating disturbances in
the electoral process in the respective assembly
constituencies/ police station areas indicating
against their names”. It is submitted that the
list enclosed contains the names of about 800
persons and many of these persons are elected
representatives such as Councilors, Members of
Panchayat Bodies and Municipalities, M.L.A.s
and M.P.s. It is submitted that while recording
a finding in first paragraph of the impugned
order dated 21.04.2026 directions are given to
take action against those persons. By placing
reliance on Article 21 of the Constitution of
India, he contends that no citizen can be
3deprived of his right of personal liberty except
according to the procedure established by law.
By placing reliance on various provisions of
Chapter – IX of B.N.S. and certain provisions of
B.N.S.S., it is submitted that for offences
related to Election, specific statutory procedure
is prescribed. The authorities under the said
statutory procedure are required to apply their
independent mind and discretion. Similarly,
Section 129 to 134 of the Representation of
Peoples Act, 1951 (in short, R.P. Act, 1951)
offences relating to election are prescribed. The
statutory authorities under the said provisions
can apply their independent mind and in the
event of any offence, take appropriate action.
For the same purpose, Section 35 of B.N.S.S.
was relied upon.
4. By referring to Article 324 of the Constitution, it
is urged that Election Commission does not
have any unbridled powers. It can exercise its
power provided the area is not covered by any
other legislation or enactment. In support of
his submission, Mr. Bandyopadhyaya places
4
reliance on 1986 (1) SCC 133 (Express
Newspapers Pvt. Ltd. & Ors. Vs. Union of
India & Ors.) to contend that if exercise of
power is alien/foreign to the purpose of the
enactment, it amounts to malicious exercise of
power. He submits that ECI does not have any
such power to issue the impugned general
direction. He has taken pains to contend that
the expression “trouble-maker” is a creation of
ECI and is not defined in any statute. ECI has
no authority, jurisdiction or power to call
certain persons “trouble-makers” and issue
direction to the police authorities to take steps
against them.
5. Lastly, by placing reliance on 2026 SCC Online
SC 162 (Satender Kumar Antil vs. Central
Bureau of Investigation) it is urged that arrest
by a police officer is based on his discretion
which facilitates only him to conduct proper
investigation, collect evidence and take action
in accordance with law. Thus, the police
authority must ask the question as to whether
arrest is necessary or not before undertaking
5
the said exercise. The said judgment is
highlighted to canvas that the police authorities
are free to take action against persons
committing offences by identifying such
persons. Therefore, the impugned blanket
direction is not sustainable.
6. Mr. Bandyopadhyay submits that he has no
objection if police authorities take action in
accordance with law against the persons, who
are committing offences. The blanket direction
dated 21.04.2026 is without any basis and is
bad in law.
7. Mr. Dutta, learned Advocate General while
supporting the case of the petitioner borrowed
the same argument that “trouble-maker” is not
defined in any penal law and, therefore, by
treating certain citizens as “trouble-maker” no
blanket direction can be issued. He also relied
on various provisions of RP Act of 1951 to
contend that the offences are described in
various sections of the said Act. The
allegations mentioned in the impugned memo
do not attract any of such penal provisions.
6
8. By placing reliance on Articles 21 and 22 of the
Constitution alongwith Entry 9 of List I and
Entry 3 of List III of Seventh Schedule of
Constitution of India Mr. Datta, learned
Advocate General submits that preventive
action/detention which curtail the freedom of a
citizen can be taken only in accordance with
law and also to the extent law permits. He also
places reliance on various sections of BNS and
RP Act of 1951 to bolster the same submission
that law prescribes the method to take
cognizance of offence and such cognizance can
be taken only by the concerned statutory
authorities. The discretion of police authorities
is clearly traceable from Section 135A of RP Act
of 1951. It is strenuously contended that
criminal law is set to motion by Election
Commission in a manner unknown to law. By
placing reliance on 1985(4) SCC 628
(Kanhiyalal Omar vs. R.K. Trivedi & Ors.)
(paragraphs 9 and 10), it is urged that the
general power of superintendence, direction
and control of elections is vested in the Election
7
Commission under Article 324(1) of
Constitution but the same are subject to any
law made either under Article 327 or under
Article 328 of Constitution. Thus, the
impugned memo could not have been passed
directing the authorities to act in a particular
manner against listed persons in a blanket way.
9. Mr. D.S. Naidu, learned senior advocate for the
ECI appearing through virtual mode urged that
so far as the question regarding competence of
ECI for issuing such direction is concerned, he
would like to file counter affidavit in this
regard. By taking this Court to the impugned
memo dated 21.04.2026, he submits that the
whole endeavor of ECI is to ensure free, fair and
peaceful elections. In order to do the same,
concerned police authorities are reminded of
their duties. The Election Commission has not
directed the police authorities to do something
without following due recourse of law. By
placing reliance on certain paragraphs of the
writ petition and affidavit, it is urged that the
petitioner has stated so many factual things by
8
contending that it is arising out of his
knowledge. In addition, he submits that from
where the petitioner has received such
information has not been disclosed. He places
reliance on Manual on Vulnerability Mapping,
2023 (in short, ‘Manual’) to contend that
Clause – K talks about accountability and
confidentiality. In order to maintain the said
aspect, Election Commission issues certain
directions to civil and police officials. Similar
directions were issued in other State also where
elections had taken place. The impugned
direction is issued in consonance with the
mandate of the said Manual.
10. Mr. Joydip Kar, learned senior counsel
appearing for the police authorities i.e.
respondent nos.5 and 6, urged that various
provisions of B.N.S. and R.P. Act, 1951 give
discretion and power to police authorities to
take action in cases of commission of
cognizable offences in accordance with law. He
undertakes that police authorities while taking
action will act strictly in accordance with law if
9
any offence takes place in order to ensure free
and fair election.
11. In view of aforesaid stand of parties, in our
opinion an important constitutional/legal
question cropped up for our decision as to
whether in exercise of power under Article 324
of the Constitution, Election Commission can
issue such general instruction like the present
one impugned herein, when the offences
relating to election are statutorily covered under
B.N.S. and R.P. Act, 1951, etc.
12. In this view of the matter, we deem it proper
to accept the prayer of learned Senior counsel
for ECI to grant him time to file counter
affidavit. Resultantly, four weeks’ time is
granted to ECI to file their affidavit in
opposition by supplying advance copy to
learned counsel for the parties. In turn, the
parties may file their exception/response within
two weeks therefrom.
13. During the course of hearing, Sri
Bandyopadhyay, learned senior counsel for the
petitioner pressed his interim relief and urged
10
that elections are scheduled in State of West
Bengal on 23.04.2026 and 29.04.2026. Thus,
the matter is very urgent and if adequate
protection is not granted, there is every
likelihood of curtailment of fundamental rights
of sizeable number of citizens.
14. This is trite that if a statute prescribes a
thing to be done in a particular manner, it has
to be done in the same manner and other
methods are forbidden. [See: Dhanajaya
Reddy vs. State of Karnataka reported in
2001 (4) SCC 9].
15. The Supreme Court in the case of Satender
Kumar Antil vs. Central Bureau of
Investigation & Anr. (MA No. 2034 of 2022
in MA No. 1849 of 2021 in SLP (Crl.) No.
5191 of 2021 reported in 2026 SCC OnLine
SC 162 held as under:
“33. On the basis of the interpretation given
by us, we conclude as follows:
a. An arrest by a police officer is a mere
statutory discretion which facilitates him to
conduct proper investigation, in the form of
collection of evidence and, therefore, shall not
be termed as mandatory.
b. Consequently, the police officer shall
ask himself the question as to whether an
11arrest is a necessity or not, before
undertaking the said exercise.
c. For effecting an arrest, qua an offence
punishable with imprisonment up to 7 years,
the mandate of Section 35(1)(b)(i) of the BNSS,
2023 along with any one of the conditions
mentioned in Section 35(1)(b)(ii) of the BNSS,
2023 must be in existence.
d. A notice under Section 35(3) of the BNSS,
2023 to an accused or any individual
concerned, qua offences punishable with
imprisonment up to 7 years, is the rule.
e. Even if the circumstances warranting an
arrest of a person are available in terms of the
conditions mentioned under Section 35(1)(b) of
the BNSS, 2023, the arrest shall not be
undertaken, unless it absolutely warranted.
f. Power of arrest under Section 35(6) read
with Section 35(1)(b) of the BNSS, 2023,
pursuant to a notice issued under Section
35(3) of the BNSS, 2023 is not a matter of
routine, but an exception, and the police officer
is expected to be circumspect and slow in
exercising the said power.”
(Emphasis Supplied)
16. It goes without saying that when the election
related offences are prescribed in B.N.S. and
R.P. Act, 1951, the authorities entrusted
therein alone are competent to take action as
per their own discretion if any such offence is
committed.
17. Furthermore, a conjoint reading of Articles
21, 22 of the Constitution with Entry – 9 of List
– I and Entry -3 List – III of Seventh Schedule
of the Constitution of India makes it clear that
12
freedom of a citizen can be curtailed only in
accordance with the procedure prescribed
under the law.
18. In Kanhiyalal Omar (supra), the Apex Court
opined that the general power of
superintendence and control of ECI under
Article 324 of the Constitution is subject to
other law. Thus, in our prima facie view the
police observer in the office of Chief Election
Officer, West Bengal has erred in issuing
blanket direction by treating certain citizens as
‘trouble-makers’. Hence, as an interim
measure, we deem it proper to stay the effect
and operation of the impugned order dated
21.04.2026 (Annexure – P/1) till the last day of
June, 2026 or till further order whichever is
earlier.
19. However, it is made clear that this order will
not come in the way of the civil/police
authorities to proceed against any person, who
commits an offence under the B.N.S., R.P. Act,
1951 or any other penal law. Putting it
differently, even if the persons, whose names
13
find place in Annexure -A of letter dated
21.04.2026, commit an offence, this interim
order will not come in the way of the authorities
to proceed against them in accordance with law
as per their own independent discretion.
20. We also direct that for exercising power of
“preventive detention/action”, the authorities
can proceed strictly in accordance with relevant
detention law.
21. List after five weeks.
(SUJOY PAUL, CJ.)
(PARTHA SARATHI SEN, J.)
