In this article, Alankrita Singh of NUSRL discusses the Powers Vested With The District Magistrate Under Section 144 of CrPC.

In order to deal with emergent situations, wide powers have been bestowed on an executive magistrate under Section 144 of CrPC. It bestows an omnibus power on magistrates to issue an order in cases of nuisance or apprehended danger provided the cases are urgent. There is a range of situations in which a magistrate may resort this power in the interest of the public as provided under Section 144(1):

• In cases where a speedy remedy is desirable.
• In cases of immediate prevention.

Also, the magistrate is supposed to issue the order in writing setting forth the material facts of the case and the order is to serve in a manner as provided by Section 134 of Criminal Procedure Code.

The scope of Section 144 of Criminal Procedure Code

According to this law, the order or the action taken under this section is anticipatory in nature i.e. certain actions are restricted even before they actually occur. Whenever as per the opinion of the magistrate ‘there is sufficient ground for proceeding under this section’, the law is applicable.

The order may direct:

• Any person to withhold from doing a certain act, or
• If a certain property is in his possession or under his management, then he can make an order with respect to it.  

The ground for making an order is that if such an offence in the opinion of the magistrate is likely to prevent, or tends to prevent,

• Obstruction,
• Annoyance,
• injury to any person lawfully employed, or
• a danger to human life, health or safety, or
• a disturbance of the public peace (tranquillity), or
• a riot, or
• an affray.

Hence, this section provides for making an order which is either prohibitory or mandatory.

In the case of Radhe Das v Jairam Mahto where the disturbance was over a piece of property, the magistrate had ordered under Sec 144 of CrPC restricting the respondents from entering the property. During the judicial proceedings, respondents also claimed prohibition of petitioners which was subsequently granted by the magistrate. The respondents in response to this claimed that their right over the property was being violated by the order. It was held by the court that private rights must be given away for the greater benefit of the society at large and the action should be for the prevention of public peace and tranquillity.

Before the application of this section, there are certain principles which must be kept in mind which have been explained in the case of Manzur Hasan v Muhammad Zaman:

• The power should be used only for the purpose of maintaining public peace and tranquillity.
• Private rights may temporarily be annulled and interest of the public is given priority.
• Under Sec 144, rights of civil nature or disputes regarding title of properties are not open for decision in a proceeding.
• The consideration should be for a large section and not that such restriction is affecting only a minor section of the community.

The principles have been approved in the case of Shaik Piru Bux v Kalandi Pati.

Though extraordinary powers are bestowed by this section as it enables to suspend the lawful rights of a person if such a suspension of the right will be in the interest of public peace and safety. But, Magistrate should ensure that the right is not diminished as a citizen has the right to express his grievances either in public or in private and ask for remedy or reform.

Also, an order under Section 144 cannot be of permanent or semi-permanent nature. As held in the case of Acharya Jagdishwaranand Avadhuta v Police Commissioner. The Anand Margis were prohibited from performing Tandava on the streets or carry skulls in processions by an order of the commissioner under Section 144 of the code. In this case, the first order lasted for two months and then after every two months, the commissioner reissued the order which was challenged. It was held by the Supreme Court that reissuing of order again and again was an abusive use of power.

The rationale for the Application of Section 144

Under this section, orders are acceptable only when it is likely to prevent:

• Annoyance

It can be of two types namely physical or mental annoyance. In physical annoyance, a certain amount of propinquity should be there between the object but in mental annoyance, no question of propinquity arises. Under this section even if an order deals with nuisance, there must be a danger to life and health involved or breach of peace. This section should not be used to deal with abusive articles and defamatory statements which are not likely to lead to a breach of peace.

• Injury to Human Life

A magistrate must ensure that the order is likely to prevent the risk of injury to human life or safety and he cannot make an order for the protection of property. The act must be satisfied on the ground that if not prevented right now, then it would turn into an offence in the near future.

• Disturbance of Public Tranquility

The act prohibited under this Section must not be enough to say that by stretching it would have possibilities to establish a connection of cause and effect between the public tranquillity and the act prohibited. The connection should have reasonability and should not be just hypothetical or distant.

• The order should be in the interest of public tranquillity and not for the advantage of one party.

Although the section does confer power on the magistrate and if there is an imminent danger to public peace then interference even with private rights maybe justifiable but the section cannot be used in favour of one party, i.e., one party should not be given material advantage over the other party.

Constitutional Validity of this Section

The provisions laid down in this section are not in excess of the limits as provided in the Constitution for restricting the freedoms guaranteed under Article 19(1) (a), (b), (c) and (d). The restrictions are reasonable and there is an availability of sufficient safeguards to the person affected by an order under section 144 of CrPC. If properly applied, the section is not unconstitutional. It was stated in the case of Madhu Limaye v S.D.M. Monghyr that the fact that it may be subdued is no ground for holding it as violative of the constitution.

The five points which were enumerated by the Supreme Court which justified the constitutional validity of the section is as follows:

• In case the magistrate passes an ex-parte order, then a notice must be served to the person against whom the order is being passed unless it is the case of an extremely critical situation.
• The persons against whom such order is passed have a right to challenge the same which shows that there is no arbitrariness.
• The principles of natural justice are also in accord of this section, i.e., an opportunity of hearing is provided to the person and also he can show cause the order.
• The fact that the injured party can challenge the order ensures that the action of the magistrate is more reasonable and is of convincing nature.
• The High Court has the power to look into the matter under Sec 435 of the Code read with Sec 439 of the Code which brings up the condition that the order under Sec 144 is non-appealable. Therefore, the liability of the magistrate is ensured as the High Court can either quash the order or for the material facts of the Magistrate.

Hence, it is held that preventive action under Section 144 is justified.

Duration of The Order

The examination of Section 144 makes it clear that a total of 60 days has to be calculated from the day on which prohibitory order was passed at the time of initiation of the proceeding.

This time period of 2 months can be extended to a maximum of 6 months from the date of expiry of initial order by the state government. Though the power bestowed with the state government is executive in nature but if in case the court finds the decision arbitrary or sees it as an unfair exercise of power, then the revision of the order can be made by the Magistrate.

Conclusion

The most important thing is that before passing an order, a magistrate must be satisfied with the ground of proceeding which should be sufficient under this section and an immediate prevention and speedy remedy must be desirable. The second element is that the magistrate must consider the fact that the direction which he gives is likely to prevent or tends to prevent annoyance, obstructions or injury to any person lawfully employed. It should be decided as a matter of fact by the magistrate that whether it will lead to the breach of peace or disturbance of public tranquillity.

The order should contain the following contents:

• The order should be in writing.
• Order must be specific and definite in terms.
• Material facts must be stated in the order.
• Prohibition must be clearly stated.

However, at this juncture there appears to be a need to balance the granting of plenary powers by the legislation to deal with the emergent situations and that the personal liberty should be protected and other freedoms must be granted to the citizens especially the rights under Article 21 of the Constitution of India.