Section 144 of CrPC is a well known and frequently used section. If confers an omnibus power on senior magistrates to issue orders in urgent cases of nuisance or apprehended danger. The wide range of situations in which magistrates may resort to this power in the public interest will be apparent from a reading of sub-sec. (1) which states: “In cases where, in the opinion of a district magistrate or any other executive magistrate specially empowered by the state government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such magistrate may, by a written order stating the material facts of the case and served in the manner provided by section-134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance, or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.” The section confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Such orders may be made by specified classes of magistrates when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable. It requires the magistrates to issue the order in writing setting forth the material facts of the case and the order is to be served in the manner provided by section-134.
SCOPE OF SECTION-144 OF CRPC
According to this law, any magistrate anywhere in the country can stop more than five people from assembling in one place. The police are empowered to do anything to ensure this. This law is applicable whenever, in the opinion of the magistrate, ‘there is sufficient ground for proceeding under this section.’
The order may direct:
- Any person to abstain from a certain act, or
- To take certain order with respect to certain property in his possession or under his management.
The grounds for making the order are that, in the opinion of the magistrate, such offence:
- Is likely to prevent, or
- Tends to prevent,
- Obstruction, (ii) annoyance, or (iii) injury, to any person lawfully employed, or (iv) danger to human life, health or safety, or (v) a disturbance of the public peace (tranquillity), or (vi) a riot, or (vii) an affray.
In nut shell the section provides for the making of an order which is either (A) prohibitory, or (B) mandatory as stated above.
Once you accept that Rahul Gandhi is human, this means that if he suffers an anxiety attack, you could face a tear gas attack. Prohibition is also recommended to prevent ‘disturbance of the public tranquillity.’ This means that raising your voice too much could lead to you getting a baton in the groin.
How can you avoid arrest under this section? It would be wise to visit your local magistrate’s office once a day, to check what exactly he is prohibiting currently. While the law gives a magistrate god-like powers, it also urges him to ‘apply his mind.’ They often do. Here are some examples.
1) During the senior secondary exams of 2011, in Udupi, Section 144 was declared within a 100 metre radius of all exam centres, to prevent ‘malpractice and indiscipline’.
2) Last October, Collector K.N. Satheesh declared Section 144 in Thiruvananthapuram, to prevent the spread of dengue, which can be transferred through urine or saliva. From this we can deduce that whenever more than five people get together in Thiruvananthapuram, they usually end up spitting and peeing on each other.
3) In 2010, the Pune Police declared Section 144 in all public parks on Valentine’s Day, to prevent immoral practices by young couples. This was despite the fact that couples usually consist of less than five people.
4) Also in 2010, hunger strikers against the Renuka Dam in Himachal were arrested for violating Section 144, as their health was getting affected, along with the tranquillity of their relatives.
5) In Kashmir, Section 144 has been in force more or less continuously since 2008. Sometimes they are allowed out to play cricket matches. The film ‘Lagaan’ was based on this, although the names of the characters were changed to protect their identities, and the nationality of the villains was changed to British.
The authority of the magistrates exercising powers under section 144 is neither absolute nor supreme but subject to supervision and revision by the higher courts and therefore the magistrates in order to act legally and with propriety, must indicate with reasonable fullness the materials on which they conclude that there was some emergency justifying their actions, so that the higher courts may check and brake them and put them back on rails when they go off.
An order issued under section 144 is essentially an executive order passed in performance of an executive function where no is as to any rights between rival parties is adjudicated but merely an order preserving peace is made and as such it will be amenable to writ jurisdiction either under article 32 or article 226 of the constitution if it violates or infringes any fundamental right.
The words “abstain from a certain act” in sub sec. (1) do not empower the magistrate to order a person to do particular acts, and the magistrate cannot assume such power even in the grab of making a negative order. An order under sec.144 must be of a temporary character, which means that it must not be irrevocable in its nature or partake of the character of a perpetual injunction.
REGARDING THE NATURE AND USE OF THE POWER GIVEN UNDER SECTION 144, THE SUPREME COURT HAS OBSERVED:
The entire basis of action under sec.144 is provided by the urgency of the situation and the power thereunder is intended to be availed of for preventing disorders, obstructions and annoyances with a view to secure the public weal by maintaining public peace….[for this purpose] it may become necessary for the executive magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the section does no confer any power on the executive magistrate to adjudicate or decide disputes of civil nature or questions of title to properties or entitlements to rights have already been adjudicated and have become the subject matter of judicial pronouncements and the decrees of civil courts of competent jurisdiction then in the exercise of his power under sec.144 he must have due regard to such established rights and subject ofcourse to the paramount consideration of maintenance of public peace and tranquillity. The exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in affair manner ordinarily in defence of legal rights, if there be such an and the lawful exercise thereof rather than in suppressing them.
CONSTITUTIONAL VALLIDITY OF THE SECTION
The provisions of the section properly understood, are not in excess of the limits laid down in the constitution for restricting the freedoms guaranteed by article 19 (1) (a) (b) (c) & (d). There are sufficient safeguards available to a person affected by any order under section-144 and the restrictions are reasonable. The section is not unconstitutional if properly applied and the fact that it may subsued is no ground for holding it as violative of the constitution as stated in the case of Madhu Limaye vs. S.D.M, Monghyr by Justice Hidayutallah.
In this case, the Magistrate gave a prohibitive order under section 144 in order to avoid a scuffle between members of two labour unions. The petitioner here challenged the provision as giving arbitrary powers to the Magistrate. For calling the power not as arbitrary the court said that as this power can only be exercised in cases of emergency, therefore it in a way restricts that act of the Magistrate. Just because there is a chance of abuse does not mean that the section should be struck down.
There were a number of contentions raised by the counsel of the petitioner however; the Supreme Court demolished each of them one by one. There were five points enumerated in the judgement, which justified the constitutionality of section 144. They are as follows.
1) Although the Magistrate has a power under this section to pass orders ex-parte¸ however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order.
2) Additionally, the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary.
3) To substantiate the above, an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. Therefore, the principles of natural justice are also complied with under this section.
4) Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order makes the action of the Magistrate more reasonable and based on cogent reason.
5) Finally the High Court’s power of revision under section 435 of the Code read with section 439 of the code also makes up for the condition that the order under section 144 is non-appeal able. The High Court can either quash the order or ask the Magistrate for the material facts, therefore ensuring accountability of the Magistrate.
Since the decision of the Supreme Court in the case mentioned above there has been a number of cases where the courts have accepted this approach and held that the preventive action under section 144 is justified.
Duration of the Order
On a perusal of sec.144 (1), (2), (3) & (4) along with the proviso will make it crystal clear that the period of sixty days has to be calculated from the date on which the prohibitory order has been passed at the time of initiation of the proceeding.
The state government can extend this time period of two months to a maximum of six months from the date of the expiry of the initial order, if it finds it imperative for prevention of certain situations causing disturbances of safety, health or peace. Although, the power conferred upon the state government is executive in nature, there can be a revision of the order by a Magistrate in case the court finds the arbitrary or unfair exercise of power.
The gist of action under section 144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequence sufficiently grave. Without it the exercise of power would have no justification. Ordinarily an order under sec.144 should not be made without affording an opportunity to the person against whom it is proposed to be made, to show cause against the same and if no notice is issued the magistrate should record his reasons to show that the occasion is considered to be one of emergency, failing which the order made ex parte cannot be sustained.
However, at this juncture, it may be opined that there appears to be a need to balance the granting of plenary powers by the legislature to deal with emergent situations, and the need to protect the personal liberty and other freedoms granted to the citizens under the fundamental rights of the Constitution, especially Article 21.
(This article is submitted by Shivangni Srivastava, Amity University, Noida)