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Section 144, CrPC

Analysing Section 144, CrPC:
 
Is it inadequate to confront urgent cases of nuisance or apprehended danger?

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Written By : Chinmayee Prasad, National Law Institute University, Bhopal

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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 cognisance 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.

Scope of Section 144 of the Criminal Procedure Code
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 Ors  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. In the words of

"To give jurisdiction under this section, the Magistrate shall be of opinion that immediate prevention or speedy remedy is desirable and that the direction he proposes to make is likely to prevent a disturbance of the public tranquillity or a riot or an affray. In such circumstances private rights must give way."

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 . They are:

1. Urgency of the situation and the power is to be used for maintaining public peace and tranquillity
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 tranquillity, 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'. 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:

"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. 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 peace.

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'. 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, the protection of this section will extend to the person.

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 distant. 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.

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-appeal able. 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.

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 defence 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 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. 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 remedies 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. 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.

(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.

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. 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.

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. Although, the power conferred upon the state government is executive in nature, there can be a revision of the order by a Magistrate in case the court finds the arbitrary or unfair exercise of power.

Conclusion
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

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