Analysis of Section 144 of CrPC: Is It Inadequate To Confront Urgent Cases Of Nuisance Or Apprehend Danger
Section 144: Power to issue order in urgent cases of nuisance or apprehended danger
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, or an affray, remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area
(4) No order under this section shall remain in force for more than two months from the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or
any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to subsection.
(7) Where an application under sub-section (5), or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
Under the Criminal Procedure Code (hereinafter the Code) wide powers have been conferred on an Executive Magistrate to deal with emergent situations. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals, whether in a specific locality or in a town itself, where the situation has the potential to cause unrest or danger to peace and tranquility in such an area, due to certain disputes. In brief, Section 144 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable. It requires the magistrate to issue the order in writing setting forth the material facts of the case and the order is to be served in the manner provided by section 134 of the Criminal Procedure Code. The wording of the section envisages a situation wherein the power provided there under may be exercised on the assessment of the Magistrate himself - a subjective satisfaction. However, the judicial pronouncement as dealt with in the paper, aptly show that certain stringent conditions have been imposed by the Courts on this most plenary powers. Therefore, as the case law discussed would indicate, not only would the Court consider the situations as assessed by the Magistrate but would also take into cognizance factors as to whether the orders issued under section 144 were vague or directed to a specific person.
Therefore, in many cases the orders issued under the provision may be struck down not squarely on the grounds that such orders were not warranted by the circumstances, but also due to factors that the orders so issued did not specifically mention the area on which the restriction are imposed and so on. The Courts have therefore laid much emphasis on the importance of following guidelines mentioned under section 134 as also in the various sub-section of section 144.
The paper begins its analysis by first expounding on the scope of section 144, followed by the explanations regarding the conditions that need be fulfilled in order to invoke it. Further in the paper, details of an order under this section are elaborated upon, like its contents, duration and mode of its service. While explaining the above, judicial pronouncements have been relied upon to substantiate as well as elucidate the meaning of the section.
The fourth branch of preventive jurisdiction deals with cases, urgent in their character, of either nuisance or apprehend danger. The nuisance referred to is public tranquility, or riot, or affray. The very urgency of the case demands the laying aside of the usual formalities and preliminaries to the making of an order. Cases of ordinary public nuisance, shorn of their urgency, have been dealt with earlier.1 Orders under this section can be issued ex parte; but they are always temporary in their duration, for they remain is force only for two months, and, only in exceptional cases, the State Government can enhance the duration upto a further period of six months. An order under this section is an executive order for preserving peace. It was held that reasonable restriction to carry on trade can be imposed for the preservation of peace and such an order could be said to be invalid as infringing Art.19(1)(g) of the constitution.
In case B.B.N. School V. Dist. Magistrate., Allahabad, 1990, it was held in the same case that the expression ‘public tranquility’ is not used in restricted sense of public order as understood under the preventive detention law.
In Ummul Khan V. Executive Magistrate, Union Territory, 1991 it was held that the Executive Magistrate has wide powers under this section. When the Magistrate came to the conclusion that the situation was created which had disturbed public tranquility and danger to human life, an order passed under section 144 is legal2.
The scheme and the provisions of the section show that it is meant to provide for temporary remedy to meet an emergency and that it applies to cases where for a temporary orders in the nature of things would be appropriate and would afford a reasonable adequate relief under the circumstances of the case. The object of this section is to enable a Magistrate, in cases of emergency, to make an immediate order for the purpose of preventing an imminent breach of the peace, etc.; but it is not intended to relieve him of the duty of making a proper inquiry into the circumstances which make it likely that such breach of the peace, etc., will occur, as held in case of Abdul V. Lucky Narain Mundul, 1879.
The extent of the authority possessed by the Magistrate is to spend the exercise of the right on particular occasions and not to prohibit it absolutely and before the occasion arises which entitles him to act.
These restrictions are within the limits of the saving provision of Art.19 (2) and (3) of the Constitution as was decided in case Ram Manohar Lohia 1968. The exercise of power ender section 144 of the Cr.P.C. must be in aid of the legal rights and against those who interfere with the lawful exercise thereof.
In case of Prabhas Kumar Roy v. The Officer in charge, Raninagar Police Station, 1985 an order under s.144 prohibiting the petitioners from taking out an immersion procession of Goddess Durga and passing in front of a mosque with music on a particular day was held to be violative of the rights guaranteed by Articles 25 and 26 of the Constitution of the processionists. An order under s.144 directing the respondent to remove a bund obstructing the flow of water was quashed as it was unlimited in duration and permanent effect in case of Parathoda Panchayat V. Kanjirappally Panchayat, 1984. In case A.H. Wheeler V. State of Bihar, 1988, the Magistrate cannot order a party to be dispossessed and order other party to be put in possession in a proceeding under section 1443.
In case Ravi Raman Prasad V. State of Bihar 1994, where R was given possession of the house in dispute through execution of a Civil Court decree against the alleged tenant, in subsequent proceedings u/s 144 Cr.P.C. the Magistrate also ultimately passed orders for possession in his favour, but the High Court appointed receiver of the disputed property on a wrong appreciation of facts, the Supreme Court, while setting aside the High Court order, held that actually the Magistrate by giving possession to R, simply maintained status quo, as R had already acquired possession through eviction proceedings in Civil Courts.4
Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility. The gist of action under S.144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the Executive Magistracy enabling it to perform that function effectively during the emergent situations. In the case of Radhe Das v Jairam Mahto and Others the dispute was over a piece of property. . The petitioners applied for restriction on the respondent from entering the property, which was ordered by the Magistrate under Section 144. However, while the judicial proceedings were in way the respondents too claimed for the same prohibition on the petitioners, which was subsequently granted by the Magistrate under the same section. The respondents in response to this order brought the present action on the ground that their right over the property was being violated by the order. The court held that if the situation demands any action, then for prevention of public peace and tranquility, the individual rights of a person can be renounced for the greater benefit of the society at large.
The principles that must be borne in mind before the application of this section has also been elaborated upon in the case of Manzur Hasan v Muhammad Zaman and approved in the case of Shaik Piru Bux v Kalandi Pati.
1. Urgency of the situation and the power is to be used for maintaining public peace and tranquility
2. Private rights may be temporarily overridden when there is a conflict between public interest and private rights
3. Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a proceeding under section 144.
4. Where those questions have already been decided by the civil courts or by judicial pronouncements, the Magistrate should exercise their power under section 144 in aid of those rights and against those who interfere with the lawful exercise thereof.
5. The consideration should not be that restriction would affect only a minor section of the community rather that a large section more vociferous and militant.
It confers full powers on certain Magistrates to take prompt action in cases of emergency when immediate prevention or speedy remedy is desirable. If there is neither an urgency calling for the application of a speedy remedy nor apprehension of danger to human life, health or safety, etc., the Magistrate cannot issue an order under this section. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would be totally futile. The Magistrate should apply his mind to see whether the matter is of such urgency as to require an order under this section.
Though the power conferred under this section is extraordinary considering the fact that it enables them to suspend the lawful rights of persons if they think such a suspension will be in the interest of public peace and safety. But the Magistrate should bear in mind that every citizen has a right to ventilate his grievances either in public or in private and ask for redress. This right cannot be curtailed so long as it is exercised in a lawful manner. It is an illegal assumption of power to issue an order under this section on a pretended apprehension of the danger of the breach of the public peace.
However, section 144 is intended to provide for an emergency, and it is idle to contend that in an emergency when a riot is apprehended and when there is apprehension of a serious disturbance of the public tranquility, the Magistrate is required to deliberate upon and decide the rights of the parties before acting.
The petitioner in this case was stated to be the greatest Pir of Sind, and held an annual religious festival, which was objected to a large number of Muslims. Considering the situation the DM of the state by an order under section 144 prohibited the celebration of this 'festival'5. This order was objected by the pir and his followers as it curtailed their rights to worship. The Court disagreed with this contention and answered the argument through the following reasoning in the case Kushumkumaree Debee v. Hemalinee, (1933) 63 Cal 11:
"this section is intended to provide for an emergency, and it is idle to contend that in an emergency, when a riot is apprehended and where there is apprehension of a
serious disturbance of the public tranquility the Magistrate is required to deliberate upon and decide the rights of the parties before acting."
The order must state the facts on the basis of which the Magistrate has decided to invoke this section. The mere statement of a Magistrate that he considered the case to be imminent is not sufficient to give him jurisdiction, if the facts set out by him show that really there was no urgent necessity for action in this connection.
Another point that needs consideration is that an order under section 144 cannot be of a permanent or a semi-permanent nature. This was held in the case of Acharya Jagdisharanand Avadhut v Police Commissioner, Calcutta where the Anand Margis were prohibited from conducting Tandava dance on the streets or carry skulls in their processions, by an order of the Commissioner under section 144 of the code.
The first order lasted for two months and then after every gap of two months the Commissioner again issued the same order. This repetition of order was challenged. The Supreme Court held this act of the Commissioner as an abuse of power and stated on page 58 that:
"the Parliament never intended the life on an order under section 144 of the code to remain in force beyond two months when made by a Magistrate. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code.
Rationale for the application of Section 144
Orders under this section are justifiable only when it is likely to prevent any of the following events from happening
1. Annoyance: Annoyance may be either physical or mental. In the case of physical annoyance a certain degree of proximity between the object annoyed and the annoyance is necessary, but in the case of mental annoyance no question of proximity arises. This section covers both kinds of annoyance.6 Section 144 Criminal Procedure Code, can be used even against newspapers in proper cases of incitements to breaches of the peace or to commit nuisances, dangerous to life or health or to annoy officers lawfully employed. Even where an order under this section deals with a 'nuisance' there must be a danger to life or health involved, or of an affray or riot or breach of the peace. Mere defamatory statements, and even highly objectionable abusive articles against prominent officials, cannot be dealt with under this section unless they are likely to lead to a breach of the peace or to a nuisance endangering life or health. The section should not be abused by using it for dealing with abusive articles and defamation not likely to lead to a breach of peace7.
2. Injury to Human life: A Magistrate has no jurisdiction to make an order under this section merely for the protection of property. He has got to be satisfied that the direction is likely to prevent injury or risk of injury to human life or safety. Most of the acts contemplated by this section are of the nature that if not prevented they will develop into an offence. But there is at least one item about which this limited view is not possible. The word 'injury' as defined under section 44 of the IPC states 'any harm whatever illegally caused to any person, in body, mind, reputation or property', and the word 'illegal' defined under section 43 of then same Code is applicable to 'everything which is prohibited by law, or which furnishes a ground for a civil action' 8.Whenever, an injury is caused to a person the recourse to this section can be taken in those situations. So, even if the act or the measure complained of be not such as would amount to an offence when allowed to be completed would furnish grounds for a civil action only.
3. Disturbance of public tranquility: The act prohibited under this section must he so prohibited if it is likely to prevent obstructions, etc., or disturbance of the public tranquility, etc. it is not enough to say that by stretching several possibilities one after the other, it is possible to establish a connection of cause and effect between the act prohibited and disturbance of public tranquility. The connection must be reasonable or proximate and not merely speculative or distant9. Where there are no circumstances peculiar to the locality and the matter is or of general impression, the absence of any near or reasonable connection between the prohibited act and the supposed danger to public tranquility will be a ground upon which the High Court is bound to act.
4. Order cannot be made to give advantage to one party: The section does give wide powers to the Magistrate, and imminent danger to the public peace may justify interference with even private interests. But the section is not to be invoked by one party to a dispute to secure a material advantage over the other.
Constitutional Validity of this section
Hidayutallah, C. J., stated in the celebrated case of Madhu Likaye v S.D.M. Monghyr, that section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and the fact that it may be abused is no ground for it's being struck down. And the provisions of the Code properly understood are not in excess of the limits laid down in the Constitution for restricting the freedom guaranteed in it and that is precisely why the Court held that section 144 of the Criminal Procedure Code is valid and Constitutional.
Since the propriety of the order is open to challenge, it cannot be said that by reason of the wide amplitude of the power which section 144 confers on certain magistrates, it places unreasonable restrictions on certain fundamental rights. The conferment of such wide powers on the Magistrate does not therefore amount to an infringement of the rights guaranteed under the Constitution. In this case, the Magistrate gave a prohibitive order under section 144 in order to avoid a scuffle between members of two labour unions. The petitioner here challenged the provision as giving arbitrary powers to the Magistrate. For calling the power not as arbitrary the court said that as this power can only be exercised in cases of emergency, therefore it in a way restricts that act of the Magistrate. Just because there is a chance of abuse does not mean that the section should be struck down.10
Whenever it appears to the Magistrate (the power is conferred on the District Magistrate, Sub-divisional Magistrate or any Executive Magistrate specially empowered by the State Government), that
(a) Immediate prevention of a public nuisance, or
(b) Speedy remedy of an apprehend danger is desirable, he may issue a written order. The order must set forth the material facts of the case; and be served as a summons. It must either direct any person to abstain from a certain act, or to take certain order with certain property in his possession or under his management.
The direction can be given only in the three cases specified in this section, namely, to prevent
(1) Obstruction, annoyance or injury to any person lawfully employed
(2) Danger to human life, health or safety; or
(3) Disturbance of the public tranquility, or a riot or an affray.
In cases of emergency, the order can be passed ex parte. It may either be directed to a person individually or to persons residing in a particular area, or to the public generally when present in a particular place. The magistrate or the State Government may rescind or alter the order either suo moto or an application of the person aggrieved. On receipt of the application of the person is entitled to be heard. If the application is rejected, reasons for rejection should be recorded in writing. The order can at the most remain in force for eight months.
In case M. Das V. D.C. Das, 1989 it was held that the jurisdiction of the Executive Sub-divisional Magistrate is concurrent with the jurisdiction of the Executive Magistrate. The main object of the provision is prevention of the breach of peace. When the provision is a preventive measure, any authority having jurisdiction can initiate the same. Priority of jurisdiction cannot be considered in such circumstances. Thus initiation of the proceeding by the Sub-Divisional Magistrate and not the Executive Magistrate does not call for any interference in revision.
In the case of Madhu Limaye, AIR 1971 it was seen that the gist of the action under this section is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible under the section to act ex parte it is obvious that the emergency must be sudden and the emergency must be sudden and the consequences sufficiently grave. But there is no general proposition that an order under this section cannot be passed without taking evidence.
There were a number of contentions raised by the counsel of the petitioner however; the Supreme Court demolished each of them one by one. There were five points enumerated in the judgement, which justified the constitutionality of section 144. They are as follows.
1) Although the Magistrate has a power under this section to pass orders ex-parte¸ however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order.
2) Additionally, the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary.
3) To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also complied with under this section.
4) Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order, makes the action of the Magistrate more reasonable and based on cogent reason.
5) Finally the High Court's power of revision under section 435 of the Code read with section 439 of the code also makes up for the condition that the order under section 144 is non-appealable. The High Court can either quash the order or ask the Magistrate for the material facts, therefore ensuring accountability of the Magistrate.
Since the decision of the Supreme Court in the case mentioned above there has been a number of cases where the courts have accepted this approach and held that the preventive action under section 144 is justified.11
Additionally, any restriction, which is opposed to the fundamental principles of liberty and justice, cannot be considered reasonable. One of the tests to find out whether a restriction is reasonable or not is to see whether the aggrieved party has a right of representation against the restrictions imposed or proposed to be imposed. No person can be deprived of his liberty without being afforded an opportunity to be heard in defense and that opportunity must be adequate, fair and reasonable. Further, the courts have to see whether the restrictions are in excess of the requirement or whether it is imposed in an arbitrary manner.
Condition precedent to assuming jurisdiction
The first thing which a Magistrate has got be satisfied about is that there is sufficient ground for proceeding under this section and an immediate prevention or speedy remedy is desirable,
and the second element which has got to be established is that the Magistrate should consider that the direction which he is about to give, is one which is likely to prevent or tends to prevent obstructions, annoyance or injury to any person lawfully employed, or danger to human life, health or safety of a disturbance of the public tranquility or a riot or an affray.
The circumstances calling for an order must be circumstances of emergency, and an order passed when there is no emergency is without jurisdiction. The Magistrate must decide as a matter of fact whether the dispute is likely to lead to a breach of the peace or a disturbance of public tranquility. The urgency of a case of nuisance or apprehended danger is essential to its treatment under section 144 of the Code, and the orders to be passed under this section must be of a temporary nature as is shown clearly by sub-section (4) of section 144 providing that no order under this section shall remain in force for more than two months from the For the purposes of section 144, it is only necessary that the Magistrate issuing the order should believe that apprehension of nuisance or danger exists. No proof of existence of such apprehension is necessary. The record of the Magistrate should disclose the existence of an emergency which called for an ex parte order under this section or that there was no sufficient time to serve notice on the party affected thereby.
An order under this section must be based upon proper evidence. In the absence of such evidence, the Magistrate cannot pass an order merely on the complaint of one party. The proper use to be made of this section is to meet a temporary urgency or keep things in Status Quo and not to pass an order which has practically the effect of a mandatory injunction in favour of one of two opposing parties whereby he is able to deprive the other completely of his ordinary legal rights and that too finally for all practical purposes.
Contents of order
(a) Order must be in writing - The words used under section 144 is "a written order" and therefore the order issued under this section must always be in writing. There must be a written order directed to the accused and duly promulgated before he can be prosecuted for disobedience of the order. If there is no written order, a prosecution under section 188, I.P.C., for the disobedience of a mere verbal order cannot stand.
As this section empowers a Magistrate to interfere materially with the liberty of the subject, it is necessary that he should promulgate his order in terms sufficiently clear to enable the public, or persons affected by it, to know exactly what it is which they are prohibited from doing.26 It is for this reason that section 144 itself makes it obligatory for the Magistrate in any such order to indicate the material facts, which justify such an order. However, it is not mandatory for the Magistrate to take evidence before issuing such an order.
(b) Order must be specific and definite in terms - The order under this section must be one, which is absolute and definite in terms. Section 144 (1) and (2), do not contemplate the passing of a conditional order to be made absolute later on or one that is pregnant with vagueness. This is imperative, as the person(s) to whom this order is issued must know exactly what is that he is prohibited from undertaking.
It is vital for the Magistrate to mention the following in the order under section 144. They are, firstly 'the act/conduct which is prohibited' and secondly 'the people who are prohibited from doing so'. The order should have names of specific persons and the prohibited act should be explained with reasonable precision. Ambiguity of any kind should be avoided as much as possible.27
(c) 'Material Facts' must be stated in the order - The order must contain a statement of the 'material facts', which the magistrate considers to be facts of the case and upon the footing of which he bases his order. The provision of section 144 only require the 'material facts' to be stated and not the grounds or reasons or the detailed substance of the information on which the order is based. Where the order did not state the material facts, it was set aside. To justify an order under section 154, there must be a causal connection between the act prohibited and the danger apprehended.
Where the order does not show that there is any emergency for which the order has been issued, the order cannot be sustained.
(d) Prohibition must be clearly stated - The thing, which is prohibited, must be clearly stated. It is not proper to leave in doubt as to whether the persons are prohibited from doing a thing or not. The order must state as to against whom the prohibition order applies, and what are they prohibited from doing or required to do. Except where the order is addressed to the public in general (as under sub-section 3), the persons against whom the orders are directed must be specified. If the order is not definite and clear, it becomes extremely difficult for enforcement. Thus for example, if an order were directed to the public, which frequents public or private streets in a particular city, such an order would be considered to be sufficiently definite as to place, and hence cannot be held to be vague. It must however be cautioned that the duration of the order must be co-extensive with the emergency.
Persons to whom order can be directed:
This sub section is an exception to the general rule that the order shall be directed to a particular person. The effect of the order being in the interest of public order being in the interest of public order and the interests of the general public, occasions may arise when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. A general order thus may be necessary when the number of persons is so large that mentioned in the section.12
No order can be issued to the public generally except when frequenting or visiting a particular place. It was decided in case of Sat Narain 1939 that an order to the public under this section prohibiting the publication or circulation of false or alarmist reports is bad in law.13 Where the order was one prohibiting the public generally against the collection of brickbats or other missiles in the village, it was held that the order would be operative to prohibit the owners or occupiers of private house in the village from collecting such missiles in their houses.
The place or locality to which an order under this clause is applied should be so clearly defined as to enable the public to know at once what the prohibited area is. The expression ‘particular place’ is not confined to a particular restricted place like a market or a park, but includes a part of a town provided that the part is sufficiently well-defined with clear boundaries so as to be easily distinguishable, and so that the public may be under no misapprehension or doubt as to what the prohibited area is.
A person who is a resident of a ‘particular place’ is a person frequents or visits it within the meaning of this section. He is even otherwise covered by the sub section. The law does not contemplate the prohibition of the frequenting or visiting of the particular place to which reference is made in this sub section, but the prohibition of some act on an occasion on which such place is visited or frequented.
It was held by the Supreme Court that the kind of orders mentioned in sec. 144(3) are obviously intended to prevent dangers to life, health and safety or peace and tranquility of members of the public. They are only temporary orders which cannot last beyond two months from the making thereof as is clear from section 144(6) of the Code. The question of the title cannot be decided here at all as held in case of Md. Ghulam Abbas v. d. Ibrahim 1978.
An order prohibiting the giving of caste dinners, or preventing obstruction to catching of stray dogs or forbidding the conduct of a religious procession attended by music along public roads, or prohibiting the public from participating in procession within the limits of the city, are held to be invalid orders.
In case Dr. Anindya Gopal Mitra v. State of West Bengal 1993, where the Police Commissioner refused permission to the BJP, a political party, to hold a public meeting and refused relaxing prohibitory order and said that the holding of a meeting could not be totally prohibited, but necessary restrictions may be imposed and preventive measure may be taken.14
Service of the prohibiting order under section 144
In this section of the paper, we would deal with the next stage of orders issued under section 144. Once the form of the order is proper, the Magistrate must then serve the order upon those expressly mentioned in the order itself. For this, section 134 of the Criminal Procedure Code is attracted. However, occasions may arise when it is not possible to distinguish between those people whose conduct must be controlled and those whose conduct is clear. In these circumstances a general order may be necessary where the number of persons is so large that distinction between them and the general public cannot be made; in these circumstances a general service of order is done through publication of the order in a daily newspaper etc.
Nevertheless, under section 134 the order must be served on the person against whom it is made (sub-section 1); or else, when such personal service is not feasible a copy of the said order must be stuck up at such place(s) as may be deemed fit (sub-section 2). The notice issued must be follow the terms of the order passed and should not be couched in wider terms. Therefore, if the said procedure were not properly followed, the order made would then be deemed illegal. The person can then not be convicted for any defiance of the order under section 188 of the Criminal Procedure Code.15 However, if it can be shown that the person against whom the order was directed did in fact have knowledge of such order being issued against him, any irregularity in the method of promulgation would not by itself make the order ultra vires.
Duration of the Order
As expressly mentioned in the section, any order passed under section 144 shall be subject to sub-clause (4) and would therefore be valid only for a period of two months. As it has already been remarked earlier, it is not competent to a Magistrate to revive or resuscitate his order from time to time. Such an exercise of power would clearly constitute abuse of power.
Every order issued under the section is timed to expire at the end of two months. It is not competent to magistrate to revive or resuscitate his order from time to time as was decided in case Govinda Chetti v. Perumal Chetti. 1913. The grant of what in effect is an order for perpetual injunction is entirely beyond the Magistrate’s powers. Successive promulgation of orders under this section to avoid a decision of the dispute is an unjustifiable use of the Magistrate’s powers, held in Usharani v. Mongal, 1917. So, also in the case M. E. Supply Co., 1973, where a direction by a Magistrate to the Electric supply company to restore supply of electric energy to a defaulting municipality cannot be warranted under this section because the direction continues such supply even when the order has spent its force. But the order is not bad if it omits to state the period of duration as was held in case of Ram Nath Chowdhry, 1907.
The state government can extend this time period of two months to a maximum of six months from the date of the expiry of the initial order, if it finds it imperative for prevention of certain situations causing disturbances of safety, health or peace. But the same power should not be arbitrary or excessive and the manner of imposition should be fair and just. It is possible for the Sessions Judge or the High Court to interfere in revision even with regard to an order under section 144 of the Criminal Procedure Code in exceptional cases when there is glaring defect in the procedure or manifest error on the point of law and consequently flagrant miscarriage of justice. It was held in case Zila Parishad, Etawah v. K.C. Saxena, 1977. All orders passed under the Cr. P.C have greater finality than the order merely summoning the accused. The proceedings, therefore, cannot be considered to be wholly interlocutory. Period of sixty days has to be counted from the date of the prohibitory order passed at the time of the initiation of the proceedings and not from the date of final order, this was decided in Maula Bux Ansari v. Ram Rup Sah, 1983.
After careful analysis of the concerned section in the light of judicial pronouncement and academic commentaries, the paper can be concluded with the assertion that, section 144, albeit discretionary, is an essential element in the set of measures that are undertaken by the executive body of any district in order to prevent as well as manage situations of urgency.
There have been numerous cases filed against the section challenging the constitutional validity of the section and an equal number of decisions upholding its legitimacy. Though, discretionary powers are conferred upon the Magistrate under this section, there are various fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. The fact that the High Court can review the order of a Magistrate under this section makes the exercise of this power more rational.
Moreover, the increasing cases of riots and other incidents ruining public peace and tranquility has made it mandatory for the Magistrates to have such powers so as to secure the common people the safety and peace which is essential for their living.
However, at this juncture, it may be opined that there appears to be a need to balance the granting of plenary powers by the legislature to deal with emergent situations, and the need to protect the personal liberty and other freedoms granted to the citizens under the fundamental rights of the Constitution, especially Article 21 making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government by notification in the Official Gazette otherwise directs.
Where this essential preliminary to assuming jurisdiction is not found to exist, his order must be deemed to be an order having no legal force and any expression of opinion contained therein must be deemed to be void of legal force or effect. This section is to be applied in cases of urgency and should not be allowed to take place of any other provision of law which might be more appropriate. And before proceeding under this section, the Magistrate should hold an enquiry and record the urgency of the matter.
Table of Cases:
1) Radhe Das v Jairam Mahto and Others
2) Shaik Piru Bux v Kalandi Pati
3) Acharya Jagdisharanand Avadhut v Police Commissioner
4) Madhu Likaye v S.D.M. Monghyr
5) B.B.N. School V. Dist. Magistrate., Allahabad, 1990
6) Ummul Khan V. Executive Magistrate, Union Territory, 1991Cr LJ 262 (Ker)
7) Abdul V. Lucky Narain Mundul, 1879 5 Cal 132, 135
8) Prabhas Kumar Roy V. The Officer in charge, Raninagar Police Station, 1985 Cr LJ 957 (Cal)
10.)Parathoda Panchayat V. Kanjirappally Panchayat, 1984 Cr LJ 971 (Ker)
11.)A.H. Wheeler V. State of Bihar, 1988 Cr LJ NOC 6 (Pat).
12.) Ravi Raman Prasad V. State of Bihar, AIR 1994 SC 109
13). M. Das V. D.C. Das, 1989 Cr LJ NOC 163
14.) Sat Narain 1939 All 934
15). Md. Ghulam Abbas v. d. Ibrahim, AIR 1978 SC 422
16.)Dr. Anindya Gopal Mitra v. State of West Bengal, 1993 Cr LJ 2096 (Cal).
17.) Govinda Chetti v. Perumal Chetti, (1913) 38 Mad 489
18.) Usharani v. Mongal, 1917 Cr LJ 1298
19.) Ram Nath Chowdhry, (1907) 34 Cal 897 FB
20.) M. E. Supply Co., 1973 Cr LJ 143
21.) Zila Parishad, Etawah v. K.C. Saxena, 1977 Cr LJ 1747 (All)
1. Madhu Limaye , AIR 1971 SC 2486, 2496
2 C.J.R. (1919) 22 Bom LR 157, 163
3. Sundaram, (1882) 6 Mad 203, 213 FB
4. Acharya Jagdishwanand Avadhuta v. Comissioner of Police, Calcutta, AIR 1983 SC 2238
Scope of Section 144 of the Criminal Procedure Code
5. Chander Singh Mandyal v. State of H.P., 1993 Cr LJ 3697 (HP)
6.Gulam Abbas v. State of U.P., AIR 1981 SC 2198
7. Kamini Muhan Das Gupta v. Harendra Kumar Sarkar, (1911) 38 Cal 876
8. Pradyot Kumar v. Bank of India, 1973 Cr LJ 1361
9. Jatindranath, 1967 Cr LJ 1361
10. Karoolal Sajawal v. Shyam Lal, (1905) 32 Cal 935
11. Abayeshwari Devi v. Sidheshwari Debi, (1888) 16 Cal 80
12. Afaq Hussain Jauhar, (1941) All 186
13. Abu Hussain Shaikh, (1940) 2Cal 110
14. Lakhmidas Makandas, (1889) 14 Bom 165
15. Vasant Khale, (1934) 36 Bom LR 733
The author can be reached at: Rajyashri@legalserviceindia.com