Topic: Madhu Limaye vs Sub-Divisional Magistrate - section 144 of the Crpc is not unconstitutional

Madhu Limaye vs Sub-Divisional Magistrate
Equivalent citations: 1971 AIR 2486, 1971 SCR (2) 711 - Bench: Hidayatullah, M. (Cj), Shelat, J.M., Bhargava, Vishishtha, Mitter, G.K., Vaidyialingam, C.A., Ray, A.N., Dua, I.D. - Citation: 1971 Air 2486 1971 Scr (2) 711 - Date Of Judgment: 28/10/1970

ACT:

Code of Criminal Procedure (5 of 1898), s. 144 and Chapter VIII-If violative of Art 19 of Constitution.

HEADNOTE:

On the questions: (1) Whether s. 144 and, (2) Ch. VIII of the Criminal Procedure Code, 1898, violated Art. 19(a), (b), (c) and (d) of the Constitution,

HELD (By Full Court) : 1(a) Article 19(2) of     the Constitution, which was substituted    with retrospective effect by the Constitution (First Amendment) Act, 1951, must be held to have been in force from 26th January 1950.    [719 B]

(b) The fiction in     the amendment     is to     make     the Constitution be read with the new clause and no other, and a law restricting the freedom in the interests of public order (among    others , or in the interest of the general public, must be held to be saved, not as the result of the amendment but because of these available restrictions operating    from the inception of the Constitution, that is, from January 26, 1950.     Whatever may     be said of     a law declared unconstitutional before the first Amendment, cannot be    said of a    law which is being considered today after the First Amendment.[718 G-H; 719 A]

(c) In this Court the doctrine of 'preferred position'     for fundamental rights has never found ground. All existing laws are continued till this 'Court declares them to be in conflict with a fundamental right and, the burden is on     the person    who contends that a particular law has become    void after the coming into force of the Constitution by reason of Art. 13(1) read with any of the guaranteed freedoms.     The burden    is not on the State to prove the reasonableness of the restriction. [721 C-G]

(d) The expression 'in the interest of public order, in Art. 19(2) of the Constitution is wider than 'maintenance of public order', because, a law may not have been designed to directly maintain public order and yet it may have    been enacted in the interest of, public order; and 'public order, is capable of taking within itself not only the absence of those acts which disturb the security of the State or     the absence     of insurrection, riot, turbulence or crimes of violence, but also absence of certain acts, which disturb public    tranquility or are breaches of peace. it will     not however take in any of the acts which disturb only     the seniority of others. [722-A-B; 124 E-H]

Ramnjilal Modi v. State of U.P. [1957] S.C.R. 860, Virendra v. State of Punjab, [1958] S.C.R. 308 and Dr.    Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709, followed. Superintendent,     Central Prison Fategarh v.    Ram Manahar Lohia, [1960] 2 S.C.R. 821, referred to.

(e) The area of detention by a Magistrate under the Code of Criminal Procedure and the area under the laws relating to preventive detention are entirely different. In the case of prevention detention of persons without

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trial on the subjective determination of the executive    this Court    has confined    the meaning of the     expression 'maintenance of public order' to graver ,episodes. But that consideration need not always apply    because     local    dis- turbances of the even tempo of life also affect 'public order' in the sense of a state of law abidingness vis-a-vis the safety of others.

[725 E-G; 726 A-B]

(f) The gist of action under s. 144 is     the urgency of     the situation and its efficacy in the likelihood of being    able to prevent some harmful consequences. It is not an ordinary power. flowing     from administration but a power used in a judicial manner and which can stand 'further judicial scrutiny. As    it is possible to act     under    the section absolutely and even ex-parte the emergency must be sudden, and the consequences sufficiently grave. Therefore,     the matter falls within the restrictions which the    Constitution itself    visualises as permissible in the interest of public order or in the interest of general public. [727 D-F; 728 A- B]

(g) Ordinarily     the order would 'be    directed against a person    found acting or likely to act in a particular,    way. But the effect of the order being in the interest of public order and in the interests of 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 may be necessary when the number of persons     is so large that the distinction between them     and the general public cannot be made. A general order is    thus justified, but if the action is too general, the order     may be questioned by appropriate reinedies for which there is ample provision in law. A person affected by the order     can ask the order to be vacated as against him, he can file a revision and even a petition for issue of a     writ.     The restraint is temporary, the power is exercised by senior Magistrates who have to make a judicial enquiry and    give reasons     for the order with an opportunity to an aggrieved person    to have it rescinded either by the Magistrate or by superior courts. Therefore, the     section is     not unconstitutional if properly applied and the fact it may be abused is no ground for striking it down. If it is abused, the remedy is to question the exercise of the power as being outside the grant of law.

[728 F-H; 729 A-C]

Babulal Parate v. State of Maharashtra, [1961] 3 S.C.R.     423 and State ,of Bihar v. K. K. Misra, [1969] 3    S.C.R.    423, referred to.

2(a) (Per Hidayatullah, C.J., Shelat, Mitter, Vaidialingam, Ray and Dua, JJ.) Both ss. 106 and 107 in Ch.    VIII of     the Code, are counter parts of the same     policy, the first applying when by 'reason of the conviction of    the person, his past conduct leads to an apprehension for the future and the second applying where the Magistrate, on information, is of the     opinion that unless prevented from so acting, a person is likely to act to the detriment of public peace and public tranquility. Section 107 enables certain specified class es of    Magistrates to make an order calling upon a person    to show cause why he should not be ordered    to execute     a bond with or without sureties for keeping    the peace for such period not exceeding one year as     the Magistrate thinks fit to fix.     The condition     for taking action    is that the Magistrate is informed and he is of the opinion that there is sufficient ground for proceeding    that a person is likely to commit a breach of peace     or disturb the public tranquillity or to do any wrongful act that     may probably occasion a breach of peace or disturb     the public tranquillity.    The section is aimed at persons who cause a reasonable apprehension of conduct likely to     lead to a breach     of the peace or disturbance to    the public tranquillity. [729 H; 730 A-B, F-G]

The procedure for taking action is set out in the remaining sections of the Chapter. The gist of the Chapter is     the prevention of     crimes and     ,disturbances     of public tranquillity and breaches of the peace.     The action 713

being preventive is not based on overt acts    but on     the potential danger to be averted.     But the provision is not a law for detention contemplated by Art. 22. Primarily,     the provisions enable the Magistrate to require the execution of a bond and not to detain a person. Detention results only on default of the execution of a bond.    The person sought to be bound over has rights which the trial of a summons    case confers     on an accused.     The law requires the Magistrate to state his reasons and the order is capable of being questioned in superior courts.- These provisions are    thus essentially conceived in the interest of public order and in the interest of the general public. If the prevention of crimes    and breach of     peace    and disturbance of public tranquillity are directed to the maintenance of the    even tempo of community life they are in the interest of public order,    and there is nothing contrary to Art.    19(1),    (a), (b), (c) and (d), because, the limits of the    restrictions are well within cls. (2), (3), (4) and (5) of the Article. Therefore, the Chapter is constitutionally valid. [729 G; 734 D-H; 735 H; 736 A-C]

(b) Section 117(3) enables the Magistraite to ask for an interim     bond pending    the completion of inquiry by    him. Section     117(1)     and (2) require the Magistrate     to inquire into the truth of the information that the person brought before    him is likely to commit a breach of the peace or disturb     the tranquillity. Hence, the Magistrate    must proceed to inquire into the truth of the information and it is only after Prima facie satisfying himself about the truth of the information and after     recording his     reasons in writing can the interim bond be asked for. Therefore, it is not open to a Magistrate to    adjourn     the case without' entering upon an enquiry and in the interval send the person to jail if he fails to furnish a bond.

[732 H; 734 r)-F]

As the liberty of a person is involved and that person is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of the Magistrate. It would make the     Magistrates action administrative    if he were to pass an order for     an interim bond without entering upon the inquiry and at    least prima facie enquiry into the truth of the information on which the order calling upon the person to show cause is based.    [733 G; 735 A-B]

In re,: Muthuswami, I.L.R. [1954] Mad. 335 (F.B.), In re : Venkatasubba Reddy, A.I.R. 1955 A.P. 96; Jagdish Prasad v. State,    A.I.R.    1957 Pat. 106; Jalaluddin Kunju v. State, A.I.R.     1952 Tr. & Co. 262, Shravan Kumar Gupta     v. Superintendent,     District Jail, Mathura & Ors., A.I.R. 1957 All. 189, Jangir Singh v. State, A.I.R. 1960     Punj.    225; Ramgowda & Ors. v. State of Mysore, A.I.R. 1960 Mys. 259 and Ratilal Jasral v. State, I.L.R. [1956] Bom. 385, approved. Emperor     v. Nabibux & Ors. A.I.R. 1942 Sind 86, Dulal Chandra Mondal v. State, A.I.R. 1953 Cal. 238, Gani Ganai & Ors' v. State, A.I.R. 1959 J. & K. 125 and Laxmi Lal v. Bherulal A.I.R. 1958 Raj. 349, overruled.

(c) There is no room for invocation of ss. 55 or 91 of     the Code of Criminal Procedure in considering the effect of Chapter VII. [736 D]

Vasudeo     Ojha & Ors. v. State of U.P. A.I.R. 1958 All.    578, overruled.

(d) Bail is only for continued appearance of a person     and not to prevent him from committing certain acts. To release a person being proceeded against under ss. 107/112 of     the Code is to frustrate the very purpose of the     proceedings unless his good behavior is ensured by taking a bond in that behalf. [736 F-G]

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Per Bhargava,    J. : (a) Under s. 107 the Magistrate takes action    when he is informed that any person is likely to commit a breach of peace or disturb the public    tranquillity only after forming an opinion that there is sufficient ground for proceeding against him. He cannot start proceed- ings merely on information. The Magistrate can form     his opinion     on the basis of the information supplied to him if he finds that the information given is in sufficient detail and reliable enough. If the information is, not sufficient, it will be his duty to hold further inquiry and satisfy himself     that it is a fit case where action should be taken because     sufficient grounds exist.    It is     after     the Magistrate has taken these steps that he can proceed to make the order under s. 112. When making that order he has to record    in it in writing the substance of the information received which necessarily means the part of the information which was the basis.of his opinion that sufficient grounds exist for initiating    the proceedings. It    is at    this preliminary stage that the Magistrate is thus    required to ensure that a prima facie case does exist for the purpose of initiating proceedings     against the person who is to be called upon to furnish security for keeping the peace.    [737 C-H]

After the order under s. 112 has been issued the procedure under ss. 113 and 114 has to be followed. The     proceedings to be    taken thereafter are laid down in s. 117(1) which requires that as soon as the order under s. 112 has    been read or explained to the person in court under s. 113 or to the person who is brought before the Magistrate under s. 114, the Magistrate has to proceed to inquire into the truth of the information upon which the action has been taken     and to take further evidence as may be necessary. This inquiry has to be held in the manner prescribed for trial of summons cases.     Thus, s. 117(1) contains a mandatory direction to the Magistrate to start proceedings of inquiry as soon as the person in respect of whom the order under s. 112     has been made appears before him. This provision cannot, however, be interpreted as requiring that the inquiry    must begin immediately when the person appears in court, because, it is impracticable to do so. It is uncertain as to when a person    will appear in court and the Legislature could     not have contemplated that in such contingencies witnesses    must be kept in readiness in the court awaiting the appearance of the person concerned.     Further, since the result of     the inquiry     may be that the person concerned has to execute a bond, with the risk of losing his liberty if he defaults, he is entitled to be represented by a    lawyer    and be     can legitimately ask for a reasonable adjournment to enable     him to engage a lawyer. Therefore, the proper interpretation of s. 117(1) is that the inquiry must begin as soon as it is practicable, and the Magistrate would be committing breach of the     direction contained in this     sub-section if he postpones the inquiry without sufficient reasons. In such a situation, the Magistrate can direct the person in respect of whom the order under s. 112 has been made to execute a bond pending completion of the inquiry under s. 117(1). [738 A-B, C-D, E-H; 738 A-C]

(b) This power under     s. 117(3) is    usually     invoked in emergent cases where the Magistrate has at an earlier stage, issued    the warrant under s. 144, where breach of peace cannot be prevented otherwise than by immediate arrest.     The Legislature, having empowered     a Magistrate    to issue a warrant     of arrest, naturally proceeded further to give     him power in such cases to direct that bond for keeping peace be furnished pending completion of the inquiry. The expression 'completion of the inquiry must be interpreted as the period covered     from the beginning of the inquiry     until     its conclusion. Such a power is     obviously necessary where there,    is immediate danger of breach     of the peace     and immediate measures are necessary

for its prevention.     When the inquiry is     held     the correctness of     the information and the tentative opinion formed ex parte under s. 107 will be

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properly tested after going through the judicial procedure prescribed, and, if    it is    found that there was     no justification,    the order would be revoked. Therefore,     the grant of the    power to the Magistrate is a reasonable restriction on     the personal liberty of a citizen. It is needed for prevention of crimes and it can only be effective if its exercise is permitted on the basis of opinion formed by a competent authority that immediate measures     are required. [739 G-H; 740 A-D]

(c) A person may be detained in jail even prior to a court arriving at a judicial finding, but such a procedure is     not only reasonable     but essential.     The power is similar    to that given to a Magistrate to order the detention, as an undertrial prisoner, of a person accused of a cognizable offence     even though, in law, he is deemed to be innocent. [740 E-F]

(d) Further, the validity of the provision should not be judged from the likelihood of the abuse of the power by     the Magistrate. If the hearing is unnecessarily delayed while keeping the person in detention, the proceedings are liable to be    quashed on the ground that the    Magistrate has     not complied with the requirements of s. 117(1). [741 A-C] Therefore, the     power    under s. 117(3) can be exercised without     the Magistrate recording evidence and finding a prima facie case after starting the inquiry under s. 117(1). But, even on this interpretation s. 117(3) is valid and is a reasonable restriction under Art. 19(2), (3), (4) and    (5). [741 E]

JUDGMENT:

ORIGINAL JURISDICTION    Writ Petitions Nos. 77    and 307 of 1970.

Petition under Art. 32 of the Constitution of India. W.P. No. 77 of 1970.

Madhu Limaye,appeared in person.

Nur-ud-din Ahmed, K. P. Varma and D.    Goburdhun, for     the respondents Nos. 1 to 4.

Niren De, Attomey-General, R. H. Dhebar, H. R. Khanna and S. P. Nayar, for the Attorney-General for India. W.P. No. 307 of 1970.

Madhu Limaye, 'appeared in person.

Rajendra Chaudhuri and Pratap Singh, for petitioner No. 2. C. K.     Daphtary, L. M. Singhvi and O. P. Rana, for     the respondents.

Niren De, Attorney-General for India, R. H. Dhebar, H. R. Khanna,     S. P. Nayar and R. N. Sachthey, for the Attorney- General' for India and Union of India.

Interveners

S. C. Agarwal and D. P. Singh, for interveners Nos. I to

3.

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A. S.     R. Chari, S.     C. Agarwal and     D. P.     Singh,     for intervener Nos. 4 and 7.

S. C. Agarwal, D. P. Singh and Asif Ansari, for intervener Nos. 4 and 7.

Shiva Pujan Singh, for intervener No. 6.

D. P. Singh, for intervener No. 8.

The Judgment of Hidayatullah C.J., J. M., Shelat, G. K. Mitter,     C. A. Vaidialingam, A. N. Ray and I. D. Du ,    JJ., was delivered by Hidayatullah C.J. V. Bhargava J. delivered a partly dissenting opinion.

Hidayatullah C.J. During the hearing of these petitions     the constitutional    validity of s. 144 and Chapter VIII of     the Code of Criminal Procedure was challenged and this Special Bench    was nominated    to consider the issue. Lengthy arguments were addressed to us by the petitioner and several interveners. The matter, as we shall show later, lies in a narrow    compass. At the end of the arguments we announced our conclusion     that the said provisions-of     the Code, properly understood, were not in excess of the limits    laid down in the Constitution, for restricting the freedoms guaranteed by Art. 19 (1) (a) (b) (c) and (d) We reservedour reasons and now we proceed to give them.

We are required to test the impugned provisions against     the first four sub-clauses of the first clause of the nineteenth article. We may accordingly begin by reading the    sub- clauses

19. (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble Peaceably and without arms; (c) to form associations or union;and

(d) to move freely throughout the territory of India;

These sub-clauses deal with    four distinct    but loosely related     topics. They preserve certain personal as well as group freedoms.     They allow an individual freedom of speech and movement and as a member of a group (and for the group also) the same freedoms plus the right of assembly     and formation of    associations and unions. Although     the guarantees appear to be in absolute terms, in reality    they are not so.    A number of restrictive exceptions     are engrafted upon each of the freedom previously     guaranteed. The restrictions are contained in cls. (2), (3), (4) and (5) and are related respectively to sub-cls. (a), (b), (c)     and (d) of the first clause. Clause (5) covers sub-cls. (e) and 717

(f ) of the first clause also, but the additional fact    does not concern us.     Of these, cl. (2), as it stands today,     was not originally in the Constitution but was substituted    with retrospective effect by s. 3 of the    Constitution (First Amendment) Act 1951. Strictly speaking there never was any clause (2) other than the one we have before us today unless we were to hold that the first Amendment was     either     not valid or not retrospective. We were invited to do so and to reconsider,, the decision in I. C. Golak Nath     & Ors. v. State of Punjab & Anr.(1) but we declined    because     its validity was not doubted at any stage in that     case.     The valdity of the Amendment therefore cannot now be questioned. As a result we are not required to read the former cl.     (2) which never existed. Clauses (2), (3) and (4) were further amended     by the insertion of the words"The sovereignty     and integrity of India" in each of them, by S. 2 of     the Constitution (Sixteenth Amendment) Act 1963. The clauses as they exist today read

"(2) Nothing in sub-clause (a) of clause     (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law     imposes reasonable restrictions on    the exercise of the right conferred     by the said    sub-clause in     the interests of the sovereignty and integrity of India the security of the State, friendly relations     with foreign States, public order, decency    or morality, or in relation     to contempt of court, defamation or incitement to an offence.

(3) Nothing in sub-clause (b) of the    said clause shall affect the operation of     any existing    law in so far as it    imposes, or prevent    the State from making any     law imposing, in the interests of the sovereignty and integrity of India     or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

(4) Nothing in sub-clause (c) of the    said clause shall affect the operation of     any existing    law in so far as it    imposes, or prevent    the State from making any     law imposing, in the interests of the sovereignty and integrity of India or public order or morality,     reasonable restrictions on     the exercise    of the right conferred by the    said sub-clause, and

(5) Nothing in sub-clause (d), (e) and (f ) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the    State from making any     law imposing, reasonable restrictions on the

(1) (1967) 2 S.C.R. 762.

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exercise of any of the rights conferred by the said subclauses either in the interests of the general public or for the protection of     the interests of any Scheduled Tribe."

All that is necessary to be decided by us is whether these clauses     save the impugned provisions of the Code     as reasonable, and valid     restrictions upon the guaranteed freedoms. Before we proceed to do so, we may dispose of a very ingenious argument by Mr. A. S. R. Chari     which may be summarised thus:

"The original clause     (2) had to be read on the commence- ment of the Constitutionand it was as follows (2) Nothing in sub-clause (a) of clause     (1) shall affect the operation of any existing law in so far as it relates, or    prevent     the State from making any law ,relating to, libel, slander, defamation, contempt of 'Court or any matter which offends against    decency     or morality    or which undermines the security of or tends to overthrow,    the State. This clause did not allow restrictions to be placed in the interests of public order on which     the impugned     provisions are justified today. Admittedly the other parts of clause (2)     are not relatable to the impugned provisions     and cannot save them without the aid of power exercisable in the interests of public order. Therefore on the coming into force of the Con- stitution the impugned provisions of the Code became void, that is to say, were dead,     and could not come    to life, again when     the Constitution was     amended. They     had to be reenacted".

Parties     joined issue on whether the provisions     were dead, that 'is to say, were erased from the Statute Book     and required re-enactment, or were merely eclipsed, that is to say, remained ineffective till the shadow of the original cl. (2) was lifted. We do not propose to enter into    this debate.     Assuming that the Constitution could     be amended with retrospective effect (a point not free altogether    from difficulty), the purpose of the amendment is 'to create a fiction. Whatever may be    said of a law declared unconstitutional before the First Amendment, cannot be    said of a 'law which is being considered today after the First Amendment. 'The fiction in the amendment is to make     the Constitution be read with the new clause and no other and a law restricting the freedoms in the interests of public order (among others) or in ,the interests of the general public must be held to be saved, not

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as a result of the amendment, but because of these available restrictions operating from     the inception of     the Constitution.    Therefore, although we consider     the matter today,    after much history has been     written and    then unwritten by retrospective amendments of the    Constitution (assuming this to be permissible), we read the protection of amended cl. (2) as available from January 26, 1950 without a break.    The fiction, if given full effect leads to no other conclusion. In this- view of the matter we do not find it necessary to refer to the rulings of this Court where     the doctrine of eclipse is considered in relation to provisions of laws declared void by Courts in the interval.    That reasoning ex facie cannot apply to this case. The result, therefore, is that we are only    required to discuss whether the provisions of S. 144 and Chapter VIII of the Code can be said to be in the interests of public order in so far as the rights of freedom of speech and expression, rights of assembly and formation of associations and unions are c oncerned and in the interests of the general public in so far as they curtail the freedom of movement throughout the territory of India.

In this connection only two topics arise for close study. Firstly what is meant by the expressions "in the interest of public order" occurring in cls. (2), (3) and (4) and "in the interests of the general public" occurring in cl.    (5). Secondly to what extent the provisions of s. 144 and Chapter VIII come within the protection.

In so far as s. 144 of the Code is concerned this Court in Babulal Parate v. State of Maharashtra,(1) had held that the section     was intra vires the Constitution but    doubts    were raised because the judgment of this Court spoke in terms of in the interest of maintenance of public order' or 'duty of maintenance of law and order' when the second clause of Art. 19 speaks of 'in the interest of public order.     Differences between the import of these several expressions were pointed out in     several cases from the time the earliest cases of this Court Ramesh Thappar v. State     of Madras(2)     and Brijbhushan v.     State of Delhi(3) down to Dr.    Ram Manohar Lohia v. State of Bihar & Ors. (4 ) and some    later cases "lowing     that case. The effect of Babulal Parate's(1)    case was claimed to be lost and it was submitted that the matter needed reconsideration. Although the topic was once again before    this Court in State of Bihar v. K. K. Misra & Ors. (5) when the second part of sub-s. (6) of the    section     was declared invalid, the decision in Babulal Parate's(1)    case was not considered in the light

(1)(1961) 3 S.C.R. 423.

(2) (1950) S.C.R. 594.

(3) (1950) S.C.R. 605.

(4) (1966) 1. S.C.R. 709.

(5) (1969) 3. S.C.R. 337.

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of other cases of this Court mentioned above. Therefore this Special Bench was constituted to review the whole position in relation to s. 144 and Chapter VIII of the Code. The petitioner and the interveners began arguments by invok- ing the doctrine of preferred-position for the Fundamental Rights.     particularly the right to freedom of     speech     and expression. Mr. Garg, an intervener, squarely based himself on the American doctrine. Mr. Chari for another-intervener was indirect. His submission is that the Courts, when faced with the question whether any legislative or executive action    is constitutional or not, must range themselves on the side of the Fundamental Freedoms and consider whether the restrictions are reasonable or not. In other words, Courts    must place the burden on the State to prove     the reasonableness    of the restriction. A word may, therefore, be said here about how the Court must proceed to examine a challenge to the constitutional validity of laws vis-a-vis a fundamental freedom.

The preferred-position doctrine in America developed by     the Roosevelt Court through Justices Black, Douglas, Murphy, Stone and Rutledge, envisaged that any law     restricting freedom of speech, press, religion or assembly must be taken on its face to be invalid till it was proved to be valid. The doctrine was perhaps the result of a remark by Justice Stone in United States v. Carolena Products Co.(1). But it has most frequently been used by Justices Black and Douglas in recent) years after the deaths of Justices     Murphy     and Rutledge in 1949. Its history is     given by Justice Frankfurter in his concurring opinion in     Kovacs     v. Cooper(2), in which he rejected it. Justice Rutldege, in Thomas v. Collins(3) stated it in these words: "This case confronts us again with the    duty our system places on this Court to say where the individual's freedom ends and the States' power begins Choice on that border, now as always delicate, is perhaps more so where     the usual presumption supporting legislation is balanced    by the preferred place given in our scheme to the    great,     the indispensable freedoms secured by the first Amendment.    That priority gives these liberties a sanctity     and a sanction not permitting dubious     intrusions. For these reasons any attempt    to restrict those liberties    must be justified by clear public interest, threatened not doubtfully or remotely,     but by clear and present danger. The rational connection between     the remedy provided and the evil

(1) (1938) 304 V.S. 144.     (2)

(1949) 336 U.S. 77.

(3) (1944) 323 U.S. 516.

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to be curbed, which in other contexts might support legislation against attack on     due process grounds,     will not suffice. These rights rest on firmer foundation".

The result of the doctrine was to shift the burden of proof on the shoulders of those defending the legislation, without raising     in their favour the presumption of the validity of legislation. It, however, has been     abandoned by     the majority of Judges, after 1949 when    Justices Clark     and Minton    replaced Justices Murphy and     Rutledge. Justice Frankfurter in     the Kovac's case(1) described it as 'a complicated process of constitutional     adjudication by a deceptive formula'. It is sufficient to say that     the preferred position doctrine has not the support of     the Supreme Court of the United States and the unreasonableness of the law has to be established.

In this Court the preferred-position    doctrine has never found ground although vague expressions such as 'the    most cherished rights', 'the inviolable freedoms' sometimes occur.     But this is not to say that any one     Fundamental Right is superior to the other or that Art. 19 contains a hierarchy. Pre-constitution laws are not to be regarded as unconstitutional. We    do not start with the     presumption that, being a pre-constitution law, the burden is upon     the State to establish its validity. All     existing laws     are continued till this Court declares them to be    in conflict with a fundamental right and, therefore,, void.     The burden must be placed on those who contend that a particular     law has become void after the coming into force of     the Constitution by reason of Art. 13(1) read with any of    the guaranteed freedoms.

The present doubt has arisen With regard to Babulal Parate's case(1), as stated earlier,     by not adhering to     the phraseology of Art. 19(2) where the words 'In the interest of public order' appear. It is these words which need an exposition and     not the expression, in the    interest of maintenance of law and order', which are not the words of the article.     To expound the meaning of     the right expressions we are required to go over some earlier deci- sions of this Court.

When Ramesh Thappar v. State of Madras(3) and Brijbhushan v. State of Delhi(4) were decided, the original clause (2)     was there.     It did not include the phrase 'in the interest     of public order'.     The validity of statutes was, therefore, tested against the words 'the security of the.State'. After the retrospective amendment substituted a new    clause,     the matter    fell to be considered in relation to 'public order. In Ramjilal Modi v. State of Uttar Pradesh(1) it was pointed out that the language employed by the Constitu- (1) (1949) 336 U.S. 77.     -(2) (1961) 3 S.C.R. 423. (3) (150) S.C.R. 594.     (4) (1950) S.C.R. 605. (5) [1957] S.C. R.860.

694 Supp. CI/71

7 22

tion, that is to say, 'in the interest of' was     wider    than the expression     'for the maintenance of' and     the former expression made the ambit of the protection very wide.     It was observed that 'a law may not have been    designed to directly maintain public order and yet it may have    been enacted in the interest of public order'. This was , again reaffirmed in Virendra v.State of Punjab(1) distinguishing on the same ground the two cases before the First Amendment. The following passage (p. 323) may be quoted: "It will be remembered that Art. 19(2), as it was then     worded, gave protection to a     law relating    to any matter which undermined     the security of or tended to overthrow the State. Section 9(1-A) of the Madras Maintenance of Public Order was made 'for the     purpose of securing public safety and the maintenance of public order'.    It was     pointed out    that whatever end the impugned Act might have    been intended    to subserve and whatever aim     its framers    might    have had in     view,     its

application and    scope could not, in     the absence of litniting words in    the statute itself. be restricted to the aggravated    form of activities which were calculated     to endanger    the security of the State. Nor     was there any guarantee that those officers     who exercised     the Power under the Act, would, in using them, discriminate between those     who acted prejudicially to the security of     the State and those who     did    not.    This

consideration cannot apply to the case     now under consideration. Article 19(2) has    been amended so as to extend its protection to a law imposing reasonable restrictions in     the interests of public order and the language used in the two sections of the impugned     Act quite clearly and explicitly    limits     the exercise of the powersconferred by them to the purposes     specifically mentioned in     the sections and to no other purpose".

We may say at once that the distinction has our respectful concurrence.

Then came the decision in Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia(2).    In that case,     the expression 'in     the interest of public order    fell to be considered. Subbarao,     J. ('as he then was)     traced     the exposition of    the phrase, particularly the     expression 'public     order.     He referred first to the observations of Pataniali Sastri, J.    (later    C.J.) in Rimesh Thappar's case(")     (supra) distinguishing offences     involving disturbances of public tranquillity which the learned Judge said were in    theory offences against public    order of a purely local significance and other forms

(11) [1958] S.C.R. 308.     (12) (1960) 2 S.C.R.

821.

(3) (1950) S.C.R. 594.

723

of public disorders of more serious and aggravated    kind calculated to endanger the security of the State. Subbarao, J. also quoted the observation of Fazl Ali,    J. in    Brij Bhushan's case(1) :

"When we approach the matter in this way, we find that while 'public     disorder' is    wide enough to cover a small riot or an affray     and other cases where peace is disturbed by or affects,    a small group    or persons, public unsafety'     (or insecurity of the    State)    will usually be connected with serious internal disorders     and such disturbances of public tranquillity was jeopardises the security of the State" (p. 612).

Subbarao, J. on the strength of these observatinns concluded that public order' was the same as 'public peace and safety' and went on to observe :

"Presumably in an attempt to get over     the effect of these, two decisions, the expression 'Public order' was inserted in Art. 19 (2) of the Constitution by the    Constitution (First Amendment) Act, 1951, with a view to bring in offences    involving breach of purely local significance within the scope of     permissible restrictions under cl. (2) of Art. 19".

He quoted the     observations of the Supreme Court of     the United    States    in Cantwell v. Connecticut(1) to establish that offences against 'Public order' were also understood as offences against public safety and    public    peace.     He referred to a     passage in a    text-book on the American Constitution which states :

"In the interests of public order the State may prohibit and punish the causing of 'loud and raucous noise, in    streets     and public places by means of     sound     amplifying instruments, regulate the hours and place of public discussion, and the use of the public streets. for the purpose of exercising freedom of speech; provide for     the expulsion     of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere 'public inconvenience, annoyance or unrest'."

He referred also to the Public Order Act 1936 in England.. Subbarao, J. however, distinguished the American and English precedents observing :

"But in    India under Art. 19 (2) this    wide concept of 'Public order' is split up under different heads.    It

(1) [1950] S.C.R. 605.

(2) (1940) 310 U.S. 296.

enables the     imposition of reasonable restrictions on the exercise of the right to freedom of speech and    expression in     the interests     of the security of    the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence. All the grounds mentioned therein can be brought under the general head 'public order' in its most comprehensive sense.     But the juxtaposition of the different grounds indicates that, though sometimes they tend to overlap,    they must be ordinarily intended to exclude each other. 'Public order' is there- fore something which is demarcated from     the others.    In that limited sense,    particularly in view of the history of the amendment, it can be postulated that     'public order' is synonymous with    public    peace,    safety     and tranquility".

Re: Madhu Limaye vs Sub-Divisional Magistrate - section 144 of the Crpc is not unconstitutional

His summary of his analysis of cases may be given in his own words

"Public order" is synonymous with public safety and tranquillity : it is the absence of disorder involving breaches     of local significance in contradistinction to national upheavals, such as revolution, civil strife, war, affecting the security of the State". We may     here observe that the overlap of public order     and public    tranquillity is only partial.    The terms are    not always synonymous. The latter is a much wider expression and takes in many things which cannot be described as public disorder. The words 'public order and 'Public    tranquillity overlap     to a certain extent but there     are matters which disturb     public tranquillity without being a disturbance of public order. A person playing loud music in his own house in the middle of the night may disturb public tranquillity, but- he is not causing public disorder. Public order' no doubt also requires absence of disturbance of a state of serenity in society but it goes further. It means what the French    designate order published, defined as an absence of insurrection, riot, turbulence, or cry     of violence.     The expression 'public order' includes absence of all acts which are a    danger to the security of the state and also    acts which are comprehended. by the expression 'order publique' explained above but not acts which disturb only the serenity of others.

The English and American precedents and legislation are     not of much help_.    The Public Order Act 1936 was passed because in 1936 different political     organisations    marched     in uniforms causing riots. In America the First Amendment freedoms have

725

no such qualifications as in India and the rulings are     apt to be misapplied to our Constitution.

In the next case of this Court reported in Dr. Ram Manahar Lohia v. State off Bihar & Ors.(1) it was pointed out    that for expounding the phrase 'maintenance of public order' "One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle    representing public order and the smallest circle represents the security of the State".

All cases of disturbances of public tranquillity fall in the largest circle but, some of them are outside 'public order' for the purpose of the phrase 'maintenance     of public order',     similarly every breach of public order is     not necessarily a case of an act likely to endanger the security of the State.

Adopting this    test we may say that the State     is at     the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbance of the serenity of life to jeopardy of the State.     The acts become graver     and graver    as we    journey from the periphery of the largest circle towards the centre. In this journey we travel first through     public tranquillity, then through public order     and lastly to the security of the State.

In dealing with the phrase 'maintenance of public order' in the context of preventive detention, we confined     the expression in the relevant Act to what was included in     the second    circle    and left out that which was in    the largest circle.     But that consideration need not always apply because small local disturbances of the even tempo of life, may in     a sense be said to affect 'public order' in a different sense, namely, in the sense of a state of    law- abidingness vis-a-vis the safety of others. In our judgment the expression     'in the interest of public order' in     the Constitution is capable of taking within itself not    only those acts which disturb the security of the State or     are within    ordre publique as dewribed but     also certain    acts which disturb    public tranquillity or are breaches of     the peace.     It is not necessary to give to the expression a narrow meaning because, as has been observed, the expression 'in the interest of public order7 is very wide. Whatever may be said of 'maintenance of public-order' in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot    be said in other circumstances.     In the former    case this Court confined the meaning to graver episodes     not involving cases of law and order which are not    disturbances of public tranquillity but of ordre publique. (1) [1966] 1 S.C.R. 709.

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it was argued that there cannot be two kinds of detention one by Magistrates under the Code of Criminal Procedure an another under laws made for preventive detention under    Art. 2 of the Constitution.     In our opinion the area of the     two is entitled rely different an there is, therefore, good classification.     We proceed    to consider the impugned provisions of the Code in light of what we have said above. We first take up for consideration s. 144 of the Code. finds place in Chapter XI which contains one section only. is headed    'Temporary Orders in    urgent    cases of nuisance apprehended danger'. The section confers powers to issue order absolute     at once in urgent cases of    nuisance or apprehended danger. Such orders may be made by specified classes Magistrates when in     their    opinion     there     is sufficient ground proceeding under the section and immediate prevention or speedy remedy is desirable. It requires     the Magistrate to issue his order in writing setting forth     the material facts of the case the order is to be served in     the manner    provided by s. 134 of the Code. The     order    may direct :

(A) Any     person     to abstain from a certain act, or

(B) to    take certain order with certain property in

his possession or under his management.

The grounds for making the order are that in the opinion of the Magistrate such direction

(a)is likely to     prevent or (b) tends to prevent,

(i)obstruction (ii) annoyance or (iii) injury, to any person law fully employed or (iv) danger to human life, health or safety o(v) a disturbance of the public tranquillity or (vi) a riot o (vii) an affray.

Stated    briefly     the section provides for the making of an which is either prohibitory (A) or mandatory (B) as above. Its efficacy is that (a) it is likely to prevent or     (b) tends to prevent, some undesirable happenings.     The gist o these happenings are

(i) obstruction, annoyance or injury to     any person lawfully employed; or

(ii) danger to human life, health or safety; or

(iii) a disturbance of the public tranquillity or a riot or an affray.

The procedure to be followed is next stated. Under sub-s (2) if time does not permit or the order cannot be served, it can

727

be made ex parte. Under sub-s. (3)     the order may be directed to a     particular individual    or to the public, generally when frequenting or visiting a particular place. Under sub-s. (4) the Magistrate may either suo matu or on an application by     an aggrieved person, rescind or alter the order whether his own or by a Magistrate subordinate to     him or made by his predecessor in Office.     Under     sub-s.     (5) where the Magistrate is moved by a person aggrieved he    must hear him so that. he may show cause against the order and if the Magistrate rejects wholly or in part the application, he must record his reasons in writing. This sub-section is mandatory. An order by the Magistrate does not remain in force after two months from the making thereof but the State Government may, however, extend the period by a notification in the Gazette but, only in cases of danger to human life, health or safety or where there is a likelihood of a riot or an affray. But the second portion of    the subsection     was declared violative of Art. 19 in State of Bihar v. K. K. Misra(1). It may be pointed out here that disobedience of an order lawfully promulgated is made an offence by S.     188 of the     Indian     Penal Code, if such disobedience causes obstruction, annoyance or injury to persons lawfuly employed. It is punishable with simple imprisonment for one month or fine of Rs. 200 or both.

The gist of action under s. 144 Is the urgency of     the siutation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to     act absolutely and even exparte it is obvious that the emergency must be sudden and the consequences    sufficiently grave. Without     it the exercise of power would have     no justification.     It is not an ordinary power flowing    from administration    but a power used in a judicial     manner     and which can stand further judicial scrutiny in the need     for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under section 144, Criminal Procedure Code cannot be passed    without taking evidence : see Mst. Jagrulia Kumari v. Chobey Narain Singh (2) which in our opinion is correct in laying down this proposition. Tese fundamental facts emerge    from the way the occasions for the exercise of     the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human fife, health or safety have no doubt     to be     abated     and prevented. We are, however, not concerned with this part of the section and the validity of thus     part need not be decided     here.    In so far as the other parts of the section are conceded the key-note of the power is to free society from menace of serious disturbances of a grave character. The section is directed against those who attempt to prevent the exercise of

(1) [1969] S.C.R. 337.

(2) 37 Cr. C.J. 95.

7 28

legal rights by others or imperil the     public     safety     and health.     If that be so the matter must fall within     the restrictions which the Constitution itself visualises as permissible in     the, interest of public order,     or in     the interest of the general public. We may say, however,    that annoyance must     assume sufficiently grave proportions to bring the matter within interests of public order. The criticism,     however. is that the section suffers    from over broadness and the words of the section are wide enough to give an absolute power which may be. exercised in an unjustifiable case and then there would be no remedy except to ask the Magistrate to cancel the order which he may     not do. 'Revision against his determination to the High Court may prove illusory because before the High Court     can intervene the    mischief will be done.     Therefore, it is submitted that an inquiry should precede the making of     the order.    In other words, the burden should not be placed upon the person affected to clear his position.    Further     the order may be so general as to affect not only a particular party but persons who are innocent, as for example when there is ,in order banning meetings, processions, playing of music etc,

The effect of the 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 who     conduct is clear.    As was pointed out in Babulal Parate's case(1) where two rival trade unions clashed and it was difficult to     say whether     a person, belonged to one of the unions or to     the general     public, an order restricting the activities of     the general public in the particular area was justified. It may be pointed out that mere disobedience of the order is not enough to     constitute an offence.     There    must be in addition obstruction. annoyance, or danger to    human life, health    or safety or a riot or an affray before the offence under s. 188, Indian Penal Code is constituted. Thus     the person affected has several remedies. He can ask the order to be vacated as against him, lie can file a revision     and even a petition for a writ. But no person can ask to be considered free to do what he likes when there are grounds for 'thinking that his conduct would be of, the kind    des- cribed    in the section for purposes of     preventive action. Ordinarily the     order would be directed against a person found acting or likely to act in a    particular way. A general order may be necessary when the number of persons is so large that     distinction between them and    the general public    cannot    be made without the risks mentioned in     the section. A general order is thus justified    but if     the action    is too     general, the order may be questioned by appropriate remedies for which there is ample provision in the law.

(1) [1961] 3 S.C.R. 423.

729

All these matters were considered also by this Court in Babulal Parate's case(1). In that case the Court emphasised that the restraint is temporary, the power is exercised by senior Magis-trates who have to set down the material facts, in other words, tomake an inquiry in the exercise of judicial power with    reasons     for the order, with     an opportunity to     an aggrieved person to haveit rescinded either    by the Magistrate or the superior Courts. We    have reconsidered all these matters and are satisfied that there are sufficient safeguards available to person    affected by the order and the restriction-, therefore are     reasonable. We are     of opinions that s.144 is not    unconstitutional if properly applied and the fact that it may be abused is no ground    for striking it -down. The remedy then is     to question the exercise of power as being outside the grant of the law.

We next proceed to consider the constitutional validity     of' Chapter     VIII of the Code. It finds place in Part IV which has the explanatory heading 'Prevention of Offences'.     The Chapter     is divided into three divisions A, B    and C.     The purport     of the Chapter can be gathered from its sub- heading     of Security for keeping the Peace and for    good behaviour.'

Division A is     for security    for keeping the peace on conviction. It consists of only one section (S. 106) and it provides that on conviction for certain offences, the Court may, at the time of passing sentence on    the person convicted, if    of opinion, that it is necessary to take a bond for future good behaviour, order him to execute a bond, with or without sureties, for keeping the peace' for a period    not exceeding three years. The sum for which     the bond is taken is proportionate to the means of     the person and it becomes void if the conviction ultimately fails. The section     is bed at persons whose past    conduct     has proved dangerous to,     the public and is intended     to secure tranquillity and peace.

Division B then consists of 12 sections (ss.    107-110     and 112119)     and applies to cases other than those mentioned in S. 106. Of these, s. 107 is for taking security generally for keeping the, peace; S. 108 is for     security for    good behaviour from persons disseminating sedition: S. 109     for security for good behaviour from vagrants and suspected persons     and S. 110 for security for good behaviour    from habitual offenders. Sections 112-119 lay down the procedure to be followed in these cases.     We are concerned in these cases with the provisions of S. 107 and therefore need     not refer to ss. 108-110.

The gist of S. 107 may now be given. It enables certain- specified classes of Magistrates to make an order calling upon a person to show cause why he should not be ordered to execute     a bond, with or without sureties for    keeping     the peace for such-

(1) (1961) 3 S.C.R. 423.

730

period    not exceeding one year as the Magistrate thinks     fit to fix. The    condition of taking action is that     the Magistrate is informed and he is of opinion that there     is sufficient ground for proceeding that a person is likely to commit    a breach of the peace or disturb    the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tran- quillity. The     Magistrate can proceed if the person is within    his jurisdiction or the place    of the     apprehended breach    of the     peace or disturbance is within the local limits of his jurisdiction. The section goes on to empower even a Magistrate not empowered to take action, to record his reason for acting, and then to order the arrest of     the person (if not already in custody or before the court)    with a view to sending him before a Magistrate empowered to    deal with the case, together with a copy of his reasons.     The Magistrate before whom such a person is sent    may in     his discretion detain such person in custody pending further action by him.

The section is aimed at persons who    cause a reasonable apprehension of conduct likely to lead to a breach of     the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the courts are intended to administer.    This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For    this purpose     Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders 'but, as far as possible, the prevention of offences. Both the sections are counter-parts of the same policy,     the first applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the future and the second applying where the Magistrate, on information, is of the     opinion that unless prevented from so acting, a person is likely to act to the detriment of the public peace and public tranquillity. The argument is that these sections (more     particularly s. 107)    are destructive of freedom of the individual guaranteed by Art. 1 9 (1) (a) (b) (c) and (d)    and are not saved by the    restrictions contemplated by cls. (2) to (5) of the article.     It is    also contended that there are no proper procedural safeguards in the sections that follow. Before we     deal with these contention it is necessary 'to glance briefly at ss. 112-119 of Division B and ss. 120-126A ,of Division C. We have seen the provision of s. 107.     That section    says that action is to    be taken 'in the-     manner hereinafter--provided and this ,clearly indicates that it is not open to a Magistrate in such a case

731

to depart from the procedure to any    substantial extent. This is very salutary because the liberty of the person is involved and the law is rightly solicitous that this liberty should only be curtailed according to its own procedure     and not according to the whim of the Magistrate concerned.     It behoves us, therefore, to emphasise the safegurds built into the procedure because from there     will     arise     the consideration of the reasonableness of the restrictions in the interest of public order or in the interest of     the ,general public.

The Procedure    begins with S. 112. It     requires that     the Magistrate acting under S. 107 shall make an order in writing     setting forth     the substance    of the     information received, the amount of the bond, the term for which it is to, be     in force and the number, character and class of sureties (if any) required.     Since    the person to     be proceeded against has to show cause, it is but natural    that he must know the grounds for apprehending a breach of     the peace or disturbance of the public tranquillity at     his hands.    Although the section speaks of the 'substance of the information' it does not mean that the order should not be full. It may not repeat the information bodily but it    must give proper notice of what has moved the Magistrate to    take the action.     This order is the foundation of     the jurisdiction and the word 'substance' means the essence of the most important parts of the information. Next follow three sections-ss. 113-115. They deal with     the person's presence. Section 113 deals with the situation when the person is present in court, then the order shall be read over to him and if he so desires, the substance of it shall be explained to him. This is not a mere formality. The intention    is to    explain     to the person what     the allegations against him are.    The next section (S.    114) deals with a situation when the person is not     present in court.     There the options two-fold. Ordinarily, a summons must issue to him but in cases where the immediate arrest of the person is necessary a warrant for his arrest may issue- This is however subject to the qualification that there must be a report of a Police Officer or other information in that behalf    and the breach of the peace cannot otherwise     be prevented. The Magistrate must not act on an    oral information but must    record the substance of it before issuing     a warrant. The section also envisages a situation in which the person is already in custody. In that case the Magistrate shall issue a warrant directing    the Officer having    the custody to produce that person. The provisions of this section. are quite clearly reasonable in the three circumstances it deals with. If the presence of the person is to    be secured, a summons to him is     the normal course except in the other two cases.

732

Section 115 then provides that such summons or warrant under S. 1 14, as the case may be, must be    accompanied by     the order under S. 112 and the person serving or executing     the summons     or warrant must serve the order on    the person. There is enabling power in S. 116 under which the Magistrate may dispense with the presence of the person in Court     and allow him to appear by a pleader.,

Then follows S. 117. That section (omitting the proviso to the third sub-section and omitting sub-ss.(4) and (5) which do not concern us) may be read here :

"117. Inquiry as to truth of information- (1) When an order under section 112 has been read or explained under section 113 to a person present in Court, or when     any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant issued under section 114,     the Magistrate shall proceed to inquire into     the truth of the information upon which action has been taken, and to take such evidence as     may appear necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner     hereinafter prescribed for conducting trials and recording evidence in summons cases.

(3) Pending the completion of    the inquiry under subsection (1), the Magistrate, if he considers that     immediate measures     are necessary     for the prevention of a breach of the peace or disturbance of    the public tranquillity or     the commission. of-     any offence or for the public safety, may,     for reasons to be recorded in writing, direct     the person in respect of whom the order under section 1 12 has been made to execute a bond, with or    without sureties, for    keeping the peace on maintaining good behaviour until     the conclusion of the inquiry, and may detain him in custody until such bond is executed or, in default of execution, until the     enquiry is coneluded".

The first sub-section read with the second requires     the Magistrate to    proceed     to inquire into the truth of     the information. The third sub-section enables the Magistrate to ask     for an interim bond pending the completion of     the inquiry     by him. This is conditioned     by the fact    that immediate measures are necessary for

733

the prevention of a breach of the peace or disturbance of the public tranquillity or the commission of any offence or for protection of public safety. This is applicable where the person is not in custody and his being at large without a bond may endanger public safety etc. 'The Magistrate     has to justify his action by reasons to be recorded in writing. If the     person fails to execute a bond, with    or without sureties, the    Magistrate is empowered to detain him in custody.

A question was raised before us whether the Magistrate     can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as    soon as the     person appears because then the Magistrate may be said to have entered upon the inquiry.    Other learned Judges are of the opinion that sub-ss. (1) and (2) envisage    that the 'Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth 1 and after recording his reasons in writing     can the interim bond be asked for. Some of     the cases on the previous view are-Emperor v. Nabibux & Ors.(1), Dufal Chandra    Mondal v. State(1) Gani Ganjai and Ors. v. State(1) and Laxmilal v. Bherulal(1).     Those    representing the other view ar-In re Muttuswami(5), In re    Venkatasubba Reddy(6), Jagdish Prasad v. State(1), Jalaludio Kunju v. State(8), Shravan Kumar Gupta v. Superintendent, District Jail, Mathura and Ors.(9), Jagir Singh v. The State("), Rama Gowda & Ors. v. State of Mysore(11) and Ratilal Jasrai v. The State(12).

In our opinion the words of the section are quite clear. As said by Straight J. in Emperor v. Babua(13), the order under s. 112 is on hearsay but the inquiry under s. 117 is to ascertain the truth of the unnecessary information.    Sub- section (1) contemplates an immediate inquiry into the truth of the     information. It is pending the completion or     the inquiry     that an interim bond can be asked for if immediate measures are necessary, and in default it is necessary to put the persons in custody. Therefore, as the liberty of a person    is involved, and that person    is being proceeded against on information and suspicion, it is necessary to put a strict construction upon the powers of Magistrate.     The facts must be of definite character. In Nafar Chandra     Pal v.

(1) A.I.R 1942 Sind 86.     (2) A ' I.R. 1953 Cal. 238. (3), A.I.R. 1959 J & K     125.(4) A.I.R 1958 Rai. 349 (5) I.L.R. (1947) Mad.     335 (F.B.)(6) A.I.R. 1955 A.P. 96. (7) A I.R. 1957 Pat. 106.(8) A.I.R. 1952 Tr & Co 262. (9) A.I.R. 1957 All 189.(10) A.I.R. 1960 Pun. 225. (11) A.I.R.1960 Mysore 259.(12) A.I.R. 1956 Boni. 385.. (13) I.I.R. 6 All. 132.

734

The King Emperor(1) there was only a petition and a report and these were not found sufficient material.    In some of the cases before us no effort was made by the Magistrate to inquire     into the truth of the allegations. The Magistrate adjourned the    case from day to day and yet asked for     an interim     bond.     This makes the proceedings entirely     one sided.     It cannot be described as an     inquiry within an inquiry as has been said in some cases.     Some inquiry has to be made before the bond can be ordered. We, therefore, approve     of those cases in which it has been laid down    that some, inquiry should be made before action is taken to     ask for an     interim bond or placing the person in     custody in default     In an     old case reported in A. D. Dupne     v. Hemcharidra(2), a Full Bench of the Calcutta High Court went into the matter. The case arose before the present Code of Criminal Procedure and, therefore, there was no provision for an interim bond. But what Sir Barnes Peacock C.J.    said 'applies to the changed law also not only with regard to the ultimate order     but also to the interim order for a bond. The section even as it is drafted today is hedged in    with proper safeguards and it would be moving too far away from the guarantee    of freedom, if the view were     allowed to prevail     that without    any inquiry into the truth of     the information sufficient     to make out a prima facie case a person    is to be put in jeopardy of detention.     A definite finding is required that immediate steps are necessary.     The order must be     one which can be made into a    final order unless something to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon    before even the inquiry began and that is neither the sense of the law nor the wording or     arrangement of the sections already noticed.

The power which is conferred under this Chapter is distin- guished     from the power of detention by executive action under Art. 22 of the Constitution. Although the order to execute a, bond, issued before an offence is committed,     has the appearance of an administrative order, in reality it is judicial in character Primarily the provision    enables     the Magistrate to    require the execution of a bond and not to detain    the person. Detention results only on     default of execution of such bond. It is, therefore, not apposite to characterise the provision    as a law for detention contemplated by Art.    22. The safeguards are therefore different. The person sought to be bound over     has rights which the trial of summons case confers On an accused.     The order is also capable of being questioned    in superior courts.     For this

(1) 28 C.w.N. 23.

(2) (1869) 12 W.R. (Cr.) 60.

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reason,     at every step the law requires the Magistrate to state his, reasons in writing. It would make     his action purely    administrative if he were to pass the order for an interim bond without entering upon the inquiry and at least prima facie inquiring into the truth of the information on which the order calling upon the person to show cause is based.    Neither the scheme of the chapter nor the scheme of S. 117     can bear such an interpretation. We    accordingly, held in the case of Madhu Limaye (Writ Petition 307 of 1970- Madhu Limaye & Anr. v. Ved Murti & Ors.) that as the    case was simply adjourned from time to time and there was no inquiry     before remanding him to custody his detention     was illegal. We may now briefly notice the remaining sections of the Chapter.

Section 118 then lays down that if upon inquiry it is proved that the person be called upon to execute a bond for keeping the peace, or maintaining good behavior the Magistrate     may call upon him to execute a bond. The security must not be more than that stated in the order    under S. 112,     nor excessive. Under s. 119 the Magistrate may discharge     the person    or release him from custody if     the necessity     for keeping him bound over is not proved.

The last Division numbered C relates to proceedings subse- quent to s. 118. Section 120 fixes the terminus a quo     for the period for which security is required.    Section     121 gives the contents of the bond and the conditions under which there is a breach of the bond. Section 122 empowers the Magistrate to reject sureties but only after inquiry and recording the    evidence and his teasons for rejection. Section     123 gives power to commit a person to prison or to be detained in prison if already there for the duration mentioned in the bond.     If the period is more than a year then the proceeding-.; have to be submitted to     a superior court.    It also provides for ancillary matters.     Section 124 empowers the District     Magistrate or    a Chief Presidency Magistrate to release a person so detained when there is no longer    any hazard to the community or to any other person. There are other provisions for reducing security etc.    with which we are not conceded. Section 125 enables the    same Magistrates to     cancel any bond for sufficient     reason     and under s. 126 the sureties also stand discharged. Section 126A deals with security for the unexpired period of bond to which no special reference is needed.

The gist of the Chapter is the prevention of crimes and     dis turbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt    acts have taken place they will have to be considered The action being preventive is not based on overt act    but on     the potential danger to

7 36

be averted. These provisions are thus essentially conceived in the interest of public order in the sense-defined by     us. They are ,also in the interest of the general    public.     If prevention of crimes, and breaches of peace and     disturbance of public tranquillity are directed to the maintenance of the even tempo of community life. there can be no doubt that they are in the interest of public order. As we have shown above 'Public order' is an elastic expression    which takes within    it various meanings according to the context of     the law and the existence of special circumstances.     This power was used in England for over 400 years and is not something which is needed only for administration of colonial empires. Its need in our society today is as great as it was before the British left. We find nothing contrary to article 19 (1 )(a) (b) (c) and (d)     because the     limits of     the restrictions are well within cls. (2) (3) (4) and    (5). We accordingly hold the Chapter as explainby us to be constitutionally valid.

Before we leave this topic it is necessary to emphasise that there is no room for invocation of other provisions of     the Code such as s. 55 or 91. In some of the cases of the    High Courts,     to which reference is not necessary, recourse     has been taken to     these provisions in aid of Chapter VIII. Apart from the fact (which we have sufficiently emphasised above)    that s. 107 itself speaks that the procedure of Chapter     VII should be followed, s. 55 deals with special cases of arrest and cannot be made applicable     'where     ss. 112, 113 and    114 of the Code     prescribe their own    pro- Similarly, s. 91 may be available till the order under s. 112 is drawn up. After it is drawn up the Magistrate has to act under ss. 113 and 117(1). Then there is no room for S.

91. The reasoning in some of the cases of which Vasudeo Ojha and Ors. v. State of Uttar Pradesh(1) is an example, is fallacious.

There is also no question of bail to the person because if instead.of an     interim bond,     bail for appearance     was admissible Chapter VIII would undoubtedly have said     so. Further     bail is only for the continued appearance of a person and not to prevent 'him from committing certain acts. To release a    person being proceeded     against under     ss. 107/112 of the Code is to frustrate the very purpose of     the proceedings unless his good behaviour is ensured by taking a bond in that behalf.

We have said    in our     earlier order     that we hold     the provisions of s. 144 and Chapter VII, as interpreted by     us, to be valid. We have shown above bow these provisions    have to be Understood and applied.    So read, we are     of opinion that they do not offend the provisions of Art. 1 9 (1)    (,a) (b) (c) and (d).

(1) A.I.R. 1958 All. 578.

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Bhargava, J. I agree with the judgement of my Lord the Chief Justice, with the exception that I am unable to subscribe to the view that, in proceedings started under section 107 of the Code of Criminal Procedure, the Magistrate     can direct the person, in respect of Whom an order under Section    112 has been made, to execute a bond , with or without sureties, for keeping the peace pending completion of the enquiry and, in default, detain him in custody until such bond is executed, only after he has entered upon the enquiry under section 1 17 (1) and has found a prima facie case satisfying himself     about the truth of the information on the basis of which the proceedings were started. 'This interpretation, in my opinion, will completely defeat the purpose of section 117(3).

It has to be noticed that, when proceedings are contemplated under section 107, the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, only after forming an opinion that there is sufficient ground for proceeding against     him. The Magistrate cannot start the     proceedings merely because of the information received by him. Pursuant to the information, the Magistrate has to form his opinion that there is     sufficient round for    proceeding. This opinion     can be formed on the     basis    of the     information supplied to him if he finds that the information is given in sufficient detail and is reliable enough to    justify     his acting    on its basis. In cases where the information given is not of such nature, it will be the duty of the Magistrate to hold further inquiry and satisfy himself that it is a fit case where action should be taken because sufficient grounds exist.     There    may be cases where the    information may be received from the Police in which case the Magistrate may examine all the Police papers and satisfy himself that there do exist sufficient grounds for him to take, the proceedings as requested by the Police. There may be cases where     the proceedings may be instituted at the instance of a private complainant who may be apprehending breach of the peace by the person complained against. In     such    cases,     the Magistrate is bound either to hold some inquiry himself by examining witnesses on oath or to have an inquiry    made through     the Police, so that he may be able    to, form a correct     opinion as to the existence of     sufficient grounds for proceeding.     It is after the Magistrate has taken these steps that he can proceed to make the order under section

112. When,making that order, he has to record in it in writing     the substance of the    information received which necessarily means the part of the information which was     the basis of his opinion that sufficient ground exist     for initiating the proceedings. It is at this preliminary stage that the Magistrate is thus required to ensure that a prima facie case does exist for the purpose of . 738

initiating proceedings     against the person who is to be called upon to furnish security for keeping the peace. After the order under section 112 has been    issued,     the procedure to be adopted is that contained in sections     113 and 114. If such person is present in Court, the order under section 112 has to be read over to him and, if he so desires, the substance thereof has to be explained to    him. If ha is not present in Court, the Magistrate has to issue a summons requiring him to appear, or, when such person is in custody, a warrant, directing the' officer in whose custody his, to bring him before the Court.    Another     alternative procedure is laid down for cases where it appears to     the Magistrate that there is reason to fear the commission of a breach    of the     peace, and that such breach of the peace cannot    be prevented otherwise than by the immediate arrest of such person; in such case-,, the Magistrate can issue a warrant     for the arrest of that person. It is     under    this procedure that the person appears or is brought before     the Court.    The proceedings to be take thereafter are laid    down in section 117(1) which requires that, as soon as the order under s. 112    has been read or explained to     the person present in Court under s. 113, or to the person who appears or is    brought     before     a Magistrate    under s. 114,     the Magistrate has     to proceed to enquire into the truth of theinformation upon which action has been taken, and to take such further evidence as may appear necessary.    This inquiry under sub-s.(2) of s. 117 has to be held in     the manner prescribed for conducting trials and recording evidence. in summons cases.    Sub-s. (1) of section 117, thus, contains a -mandatory direction on the Magistrate to start     proceedings of inquiry as soon as the person, in respect of whom     the order under s. 112 has been     made,    appears     before     the Magistrate. 'Section    117(1)    makes it clear that     the Magistrate must institute the inquiry without     any unnecessary delay. This provision cannot,    however, be interpreted as     requiring that the inquiry    must begin immediately when the person appears in    the Court. Obviously, such a requirement would be impracticable. In a case where a summons is issued to the person to appear in Court,    or a warrant is issued under the proviso to s.     114 for his arrest, the date and time when the    person    will appear    in the Court of the Magistrate will always remain uncertain. Some time will have to be taken in serving     the summons and, depending on the distance and accessibility of the place where the persons happens to be, the time taken in serving     the summons will vary. Even     in cases where a warrant. is issued under the proviso to S. 1 14, the person may not be produced in Court immediately because of     the place of his arrest which may be miles away from the Court of the Magistrate .    The Legislatures could not    have contemplated that, in such contingencies, witnesses must be kept ready in the Court

739

of the     Magistrate awaiting the appearance of     the person concerned, so    that the Magistrate can start    the inquiry immediately.Further, the inquiry under s. 117(1) is directed in the manner prescribed for conducting trials     in summons cases.     The result of the inquiry can be that     the person concerned can be asked to execute bonds and give sureties for keeping the peace and, if he commits default in doing so, he     can be detained in prison losing his personal liberty. In such cases, the person concerned has a right to be represented by a lawyer in the inquiry. Consequently, when he appears before the Magistrate, he can    legitimately ask for a reasonable adjoumement to enable him to engage a lawyer    of his choice and, thus, at his own request, he can ensure    that the inquiry does not begin immediately.     The proper    interpretation of sub--s. (1) of section 117, in my opinion, is that the inquiry must be     begun    as soon as practicable and a Magistrate would be committing a breach of the direction contained in this sub-section if be postpones the inquiry without sufficient reasons.

It is in the light of these principles that, in my opinion, the power granted to the Magistrate under section 117(3) should be interpreted.    That power is given for cases where immediate measures are necessary for the prevention of a breach    of the peace. In such a situation, the Magistrate can direct the person, in respect of whom the order under s. 112 has been    made, to execute a bond, with     Or without sureties, for keeping the peace pending completion of     the inquiry     under    s. 117(1) and, if he fails to    execute     the bond, the Magistrate can direct his detention until     the enquiry     is concluded.     This power to     be raised by     the Magistrate in emergent cases has been conferred in the back- ground of the procedure which he has to adopt under section 107 of     forming an opinion, after receipt of    information, that there do exist sufficient grounds    for taking proceedings. At the first stage, when forming such opinion, the Magistrate naturally acts ex parte and has to rely on information supplied to him or other information obtained by him in the absence of the person againct whom    proceedings are to be taken. It is on the basis of that opinion    that the Magistrate proceeds to make the order under s. 112     and is empowered even to issue a warrant of arrest under     the proviso     to section-114. The power under s. 117(3) is    most likely    to be invoked in cases where the Magistrate has, at an earlier stage, issued the warrant under the, proviso to s. 114.     This is so because 'the warrant is issued in cases where breach of the peace cannot be prevented otherwise than by immediate arrest, and S. 117(3) also is to     be invoked where the,Magistrate considers that immediate measures are necessary for    prevention of breach of the    peace.     The Legislature, having empowered     the Magistrate to issue warrant of arrest, naturally proceeded further to give power to the Magistrate in such cases to direct that bonds for 740

keeping     the peace be furnished pending completion of     the inquiry. The expression "completion at the inquiry" must be interpreted as the period covered from the beginning of     the inquiry until    its conclusion.     The bonds can, therefore, cover the period from the moment the inquiry is to begin. Such a power for requiring that bonds be furnished pending inquiry     is obviously necessary where    there is immediate danger    of breach of the peace and immediate measures are necessary for    its prevention.     The order is made on     the basis of the earlier opinion formed by the Magistrate under S. 107. Subsequently, of course, when the inquiry is    held under s. 117(1), the correctness of the information and     the tentative opinion formed ex parte under S. 107 will be    pro- perly tested after going through the     judicial procedure prescribed for the trial of summons cases and, thereupon, if it is found that there was no justification, the order would be revoked. In my opinion, the grant of such a power to a Magistrate is a very reasonable restriction on the personal liberty of a citizen. It is needed for prevention of crimes and it can only be effective if its exercise is permitted on the basis of opinion formed by tent authority that immediate measures are required. that, under s. 117(3), a person     can be detained in prior to a Court arriving at     a judicial finding against such a procedure is not only reasonable, but essential.

In this respect, the power of a Magistrate in    regard son accused of a cognizable offence is comparable.    If trate has sufficiently reliable information to form an opinion that a person    has committed a cognizable offence, the Magistrate can ,order his detention as an undertrial prisoner. At that stage,    the law deems that person still to be innocent    and, yet, his detention in prison is considered reasonable in order to ensure that a proper ,trial can be held and there is no    repetition of the offence of which that     person     is accused. This detention as an undertrial prisoner is    also based on the    ex parte opinion formed     by the Magistrate before the actual trial. The power granted under S. 117(3) is very similar and is intended to ensure that the person, from whom breach of the peace is apprehended,     is not at liberty     to commit breach of the peace and thus     defeat     the purpose     of the proceedings by being allowed to remain at liberty     without any undertaking during the pendency of     the inquiry.

In this connection, it was urged by Mr. Garg that, if S. 117(3)    is interpreted as permitting a Magistrate to direct furnishing of    bonds for keeping the peace and to order detention in default without any evidence being obtained in the course of     the inquiry, the Magistrate may keep on adjourning the hearing of the inquiry under s.     117(1)     and thus, keep the person in detention for long periods without giving him the opportunity of showing that there 741

is no justification for orders being made against him.     In my opinion, the validity of a provision of this nature is not to     be judged from the likelihood of the abuse of     the power by the Magistrate. If the Magistrate. rafter making orders under s. 117(3), unnecessarily postpones the inquiry, he would, in my opinion, be not only abusing his powers, but will be acting contrary to the mandate of the law contained in s.    117(1)    itself which, as I have indicated above, requires that the Magistrate must proceed to enquire    into the truth of the information without unnecessary delay.     In cases where the power is abused and the    hearing     is unnecessarily delayed, the proceedings would be liable to be quashed and the person set at liberty on the ground that the Magistrate has not complied with the requirements of s. 1 17 (1 ). On the other hand, if the Magistrate does comply    with s. 117     ( 1 ) by continuing the proceedings     of inquiry expeditiously and without any delay, I do not think it     can beaid that the detention of the person, against whom     the proceeding are being taken, is not a reasonable restriction on his personal liberties when the Magistrate    has already found that immediate, measures are necessary for prevention of breach of    the peace and     the person concerned     has defaulted in furnishing bonds to keep the peace during     the pendency of the inquiry.

These are the reasons why, in my opinion, the powers under section     117(3)     can be exercised without the Magistrate recording evidence and finding a prima facie     case after starting the inquiry under section 117(1). Even on    this interpretation, section 117(3) is valid and is a reasonable restriction under Article 19(2). (3). (4) and (5) of     the Constitution.

V.P.S.

Directions given.