Introduction: What is the meaning of Section 144?
Section 144 of the Criminal Procedure Code, 1973 (Cr.P.C.) empowers the District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate authorised by the State Government, to deliver orders concerning any urgent cases of nuisance or apprehended danger. However, this Section deals with Chapter X’s provisions concerning the maintenance of public order and tranquillity.[1] The meaning of Section 144 mainly aims to protect the public peace, tranquillity, which again extends to public safety.
In short, it is meant to put a bar on the public disorder and not on the general disorder.[2] It shall be implemented only when the authority is satisfied that there is an utter need for such preventive measure by the executive.[3]
Orders under Section 144 comprises of the following nuisances such as public obstructions, riots, affray, causing injury to a person who is lawfully employed, causing injury to human health and safety. The order under Section 144 can be passed against a single individual concerning the imposition of restriction related to any property under his possession or management, against the general public as also ex parte.
However, an ex parte order can only be passed in case of an emergency where the time frame does not permit the issuance of the notice to the person against whom the order is directed.
Under Section 144, the order could be directed to the person or the persons residing in a particular area or place or to the public in general who are visiting a particular place or area. Any order under this Section shall not be in force for more than two months. However, if the State Government thinks fit in case of an emergency, it may direct the Magistrate to pass an order under the concerned Section, in which case, the period shall be extended to 6 months from the date of making of such order.
Scope of Section 144:
The flexibility provided under the said Section states that any person aggrieved by the order passed under Section 144, could appear in person before the State Government or the Magistrate, to rescind or alter the order so passed. The Magistrate or any other Magistrates subordinate to such Magistrate or any of its predecessors in office holds the authority to rescind and alter such order if and when they think fit. Section 144 deals with urgent cases of nuisance and apprehended danger.[4] For any order to be passed under this Section, three conditions must be fulfilled.
- The situation must be sudden and grave. The urgency of the situation must determine the mode of action under this Section.
- Must meet sufficient evidential requirement which shall be backed up by the detailed facts of the emergency.[5]
- Must be passed by an appropriate authority that has been expressly mentioned in the Section.
Under this Section, the order is often anticipatory in case of an emergency, as it can impose restrictions that are reasonable upon the Fundamental Rights so granted under Article 19. Therefore any order made by the Magistrate under Section 144 to preserve peace and public order, if bars the Fundamental Rights under Article 19 temporarily, then such order is not invalid and shall not be violative to the Constitution’s sense.
Under this Section, the Magistrate must deliver orders only when there is an acute necessity of immediate prevention or speedy remedy; only when the authority is convinced that there could be a potential danger to human life or disturbance of public tranquillity or a riot or an affray.[6] However, just a mere statement of the District Magistrate that he considers the situation to be grave and could invite imminent danger is not sufficient to provide him with the required jurisdiction, if the facts set out that there was hardly any possibility of danger and therefore, there was no requirement of such urgent order.[7]
The Magistrate should not restrain the private individual’s liberty by passing an order under this Section when there are no apprehensions of the breach of peace.[8] The right to restrain public rights and liberty under this Section could only be exercised when such restrictions are the only means to prevent any nuisance or danger that could eventually result in the breach of public peace and tranquillity.
Section 144 merely provides power to the Magistrate to prevent any apprehended danger and breach of peace. However, it never empowers an Executive Magistrate to decide any questions concerning the possession of any property and ownership.[9] Under this Section, the Magistrate must state the material facts of the urgency in the writing and the potential reasons that could result in a situation leading to a breach of peace.
The provision only requires the material facts to be stated and not the reasons or grounds in detail on which the order is passed. The Magistrate shall pass an ex parte order only in cases where he is satisfied that the circumstances would not permit him to serve a notice to the definite person to whom it has been directed.
In case of a dispute relating to a right claimed by two parties, the Court shall restrain both the parties from exercising the alleged right and shall make it absolute or pass an ex parte order after hearing both of them in the Court of law. Subsection (3) of the Section states that an order can be passed against the public in general, which means that an order could be passed against more than one person. The direction could be given to more than one person to restrain him from doing something or direct someone to obey a set of orders.
Application:
The Section’s general application focuses mainly on societal values, highlighting an enormous emphasis on the public interest. After adequately satisfied that there is an acute urgency to prevent any apprehended danger or public disorder; Section 144 must be invoked.[10] Direction can be given to another person concerning specific property either in his possession or under his management. Any circulation of speech and publications promoting racial discrimination, communal riots or public disorder or are likely to cause one, could be restrained and prohibited to prevent such disorders for the public interest. The provision of ex parte order must state the urgency of the situation. The preventive measures must qualify the requirement of preventing the circumstances that could have resulted in any public disorder and disturbance of societal peace.[11]
The imposition of any restrictions merely under any apprehensions that lacks credible material facts shall not be approved as that would unnecessarily violate the citizens’ fundamental rights. The preventive grounds must be credible enough and must invite a remedy.
Constitutionality:
A prohibitory order concerning the constitutionality of Section 144 was challenged in the landmark judgment of Babulal Parate v. the State of Maharashtra.[12] A public disturbance broke out between two rival Union who was the members of Express Mill at Nagpur.
The District Magistrate delivered order under Section 144 intending to prevent the disturbances so caused. The order prohibited the assembly of five or more persons and prevented provocative slogans’ shouting in specified areas for 15 days. However, any assembly for religious and funeral purposes was left outside the scope of the order. An office-bearer of one of the Unions held an office meeting outside the area of the prohibitory order. In the said meeting he exhorted the workers to take out processions in the prohibited area in contravention to the order passed under Section 144. He got arrested and remanded to judicial custody and was refused bail. He had filed a writ petition under Article 32 against the State and its executive offices forbidding them from enforcing the prohibitory order and quashing the criminal proceedings against him. He prayed to be set at liberty. The order of the Magistrate was declared unconstitutional and violative of Article 19(1)(a) and 19(1)(b) of the Constitution on the following grounds:
- The impugned order was directed against every public and not only to the workers of the mill alone.
- Besides processions for funerals and other religious activities, the order never exempted the citizens’ other legal activities.
- The word ‘provocative slogans’ was never defined in the order which could again have numerous interpretations.
However, the Supreme Court held the prohibitory order valid on the following grounds:
(a) It would be challenging for the Magistrate to distinguish between the public and the Union members. If any members of the public being unconnected with the members of the two Union, were under the impression that the order restricted them from exercising their lawful rights, it was open for them to apply to the Magistrate for the modification of the order so that they could have been exempted from the same.
(b) Though there had been no specific definition of the word “provocative slogans” but it has to be read and explained in terms of the context of the case in which it has been used. Therefore, the order cannot be regarded as vague and cannot be held to place unreasonable restrictions on the right of free speech to its citizens.
(c) Article 19(2) and Article 19(3) of the Indian Constitution imposes reasonable restrictions on Fundamental Rights as contained in Article 19(1)(a) and (b) in the interest of protecting the public order. Therefore, the legislature is competent to make law, thereby permitting any appropriate authority to take any anticipatory actions and impose any anticipatory restrictions to maintain public order. Therefore, the anticipatory actions which are permissible under Section 144 are not permissible under Article 19(2) and (3) of the Constitution. Therefore, when Section 144 is appropriately applied, it is not unconstitutional or offends the provisions of Article 19 as the restrictions are supposed to protect the public order and peace.
Conclusion:
Section 144 of Cr.P.C. is more like a societal remedy to prevent public disorder and preserve public tranquillity. The need of urgency for the imposition of an order delivered under this Section is the proof of sudden circumstances that could pose potential unrest among the public and, therefore, breach public peace. An acute need for immediate prevention and the speedy remedy must be desirable to satisfy the conditions for the imposition of Section 144.[13]
However, any restrictions imposed by the order provided under Section 144 that creates a temporary bar on the general public’s Fundamental Rights, should not be invalid or unconstitutional since those restrictions are meant to prevent an anticipated public disorder solely for the public interest. However, the grounds of prevention shall be reasonable and must establish a close link with the grounds responsible for the occurrence of public unrest or any apprehended danger. Contrary to which, the order shall be deemed to be invalid and illegal.[14]
Under Section 144, the word “emergency” plays a pivotal role and shall bear varied interpretations depending upon each case’s contexts. Therefore, every case shall be treated and read independently as per their requirements. In Madhu Limaye v. S.D.M. Monglyr, it was held that the gist of action under Section 144 is the urgency of the situation. Its efficacy lies in the likelihood of preventing some harmful occurrences.[15] The power so used under Section 144 is not an ordinary administrative power; preferably, it is used judicially. If an order passed is not in conformity with the provisions of Section 144 and are used beyond the scope of the power so has been conferred in the Section, such order could be struck down as illegal. Section 144 is more general and broader in the sense that an order under this Section can be made under various circumstances, including in case of an anticipated danger concerning the breach of peace. Therefore, Section 144 provides the privilege to take action in urgent cases of nuisance or danger and serves as an essential weapon in mitigating any anticipated danger or public unrest to preserve public peace and tranquillity.
References
[1] The Code of Criminal Procedure, 1973, section 144.
[2] Ram Manohar Lohia vs State of UP, AIR 1968 All 100.
[3] Mayur Kulkarni, Imposition of Restrictions under Section 144 Cr.P.C. and the Test of Proportionality,CCLSNLUJ (2020).
[4] Modern Medical Dental College Vs State of M.P. (2012) 4 SCC 707.
[5] Sowmya Reddy vs State of Karnataka 2020.
[6] Icchu Devi v. Union of India (1980) 4 SCC 531.
[7] Ummul Khan V. Executive Magistrate, Union Territory, 1991Cr LJ 262 (Ker).
[8] Prabhas Kumar Roy V. The Officer in charge, Raninagar Police Station, 1985 Cr LJ 957 (Cal).
[9] Chander Singh Mandyal v. State of H.P., 1993 Cr LJ 3697 (HP).
[10] Kamini Muhan Das Gupta v. Harendra Kumar Sarkar, (1911) 38 Cal 876.
[11] Anuradha Bhasin vs UOI (2020) SCC OnLine SC 25.
[12] AIR 1961 SC 884.
[13] BBN School vs District Magistrate, Allahabad 1990 CriLJ 422.
[14] Zila Parishad, Etawah v. K.C. Saxena, 1977 Cr LJ 1747 (All).
[15] AIR 1971 SC 2486, 2496.
