This article is written by Sushmita Choudhary from New Law College, Bharati Vidyapeeth Deemed University”. It deals with the powers of an Executive Magistrate under CrPC to disperse an unlawful assembly.
In this article, we are going to learn how an executive magistrate is conferred with powers of disposal of unlawful assembly and in what ways he can conduct them. Also, the landmark judgements will help in understanding the changing trends of cases under this purview. The need for these powers will also be highlighted in this article.
Unlawful Assembly is considered as a criminal offence in many countries like the UK, USA, Hong Kong and Canada including India. An Unlawful Assembly is a gathering of five or more persons intended to carry on a lawful purpose which results in disturbance and peril to the general public can be said to be an unlawful assembly.
According to section 141 of the Indian Penal Code, Assembly can be defined as an assembly of five or more persons if the common intent of the assembly is as follows-
- To intimidate by using criminal force or by showing criminal force to the Central Government or any State Government or Parliament or the Legislature of any state, or any public servant.
- To defy any law or legal procedure.
- To commit any act which can be termed as mischief or criminal trespass or any other offence.
- By usage or show of criminal force to any person with a view to take or obtain possession of any property, or to deprive any person of the enjoyment or deprive him of the use of water or any other incorporeal right which is entitled to him or to enforce upon him any right or supposed right.
- By usage or show of criminal force, to forcefully make any person do something which he is not legally bound to do or omit something which he is legally entitled to do.
The main element in declaring unlawful assembly as a criminal offence is a common intention. If a group of 5 or more people gather together without any intention of inciting the above-said things, the assembly won’t be considered as unlawful. The Constitution of India guarantees every citizen a fundamental right under Article 19(1)(b) to assemble peaceably and without arms. This is contrary to the unlawful assembly as defined under section 141 of IPC.
Section 143 of IPC deals with the punishments given to the unlawful assembly members stating that whoever has been a member of an unlawful assembly shall be punished with imprisonment of a term which may extend to six months, or with decided fine, or with both.
Section 144 of IPC acts as an additional clause stating that whoever joins an unlawful assembly with arms or any deadly weapon likely to cause death shall be punishable with imprisonment for two years or fine or both.
Section 145 of IPC states that whoever joins an unlawful assembly already knowing that it has been commanded to be dispersed by the executive authorities, shall be punished with imprisonment of 2 years or fine or both.
Section 149 of IPC says that any member of an unlawful assembly shall be held guilty of any offence which he knows is going to be committed and will be punished for the same term as for the offence.
Power of the magistrate and procedure of disposal by him
An executive magistrate is conferred with various powers regarding unlawful assembly in order to ensure public order and peace in society as an unlawful assembly creates an unruly situation of public order and security.
- Section 129 of the Code of Criminal Procedure states the dispersal of unlawful assembly by use of civil force
Here, any executive magistrate or any police officer minimum to the rank of sub-inspector can command any unlawful assembly to disperse if it is likely that the assembly can cause a disturbance in public peace. The members of such assembly are bound to disperse accordingly.
If such an assembly with or without being commanded doesn’t disperse or shows a determination not to disperse, any Executive magistrate or police officer minimum to the rank of sub-inspector is empowered to take action as follows:
- Proceed to disperse such assembly by force.
- If assistance is required, he can take help of any male person even if he is not an officer or member of the armed forces.
- If deemed necessary, he can arrest and confine the members of such assembly.
If the members of unlawful assembly don’t adhere to the instructions of the authorities in-charge, they will be punished by law.
Section 130 of CRPC states the dispersal of unlawful assembly by use of armed forces:
- The Executive Magistrate of the highest rank present may cause the dispersal of unlawful assembly by the armed forces if-
- The assembly cannot be dispersed in other ways.
- If it is necessary for the security of the public.
- Such a Magistrate has the authority to ask any officer in command of the present armed forces group, with the help of the armed forces under his command to disperse the assembly. If needed,he may ask the present officer to arrest and confine such persons involved as may be necessary. The Magistrate can have the members or part of members of the unlawful assembly punished according to law.
- Every such officer shall obey such order in a manner he deems fit, but while doing so he shall use rational and minimum force. He shall do as little damage to person or property, as may be required for dispersing the assembly and arresting and detaining the involved persons.
- Section 131 of CRPC states the power of certain armed force officers to disperse assembly with a condition added regarding executive magistrate.
Any commissioned or gazetted officer of the armed forces may-
- Disperse any such assembly with the help of the armed forces under his command.
- Arrest and confine any persons involved in such unlawful assembly.
Provided the public security is clearly endangered by any such assembly and any Executive Magistrate cannot be communicated with.
However, as soon as it becomes practical for the gazetted or commissioned officer to communicate with an Executive Manager, he shall do so, and shall thereafter obey the instructions of the Magistrate and consider whether the Magistrate wants the action ongoing, to be continued or not.
- Section 132 of CRPC states protection against prosecution for acts under preceding sections.
- No prosecution shall be instituted in any Criminal Court against any person who has done an action under section 129, 130 and 131. However, there are certain exceptions to this provision. The Prosecution shall be instituted:
If the Central government has sanctioned such prosecution against an officer or member of the armed forces.
If the State Government has sanctioned such prosecution in any other case.
- No Executive Magistrate or police officer who acted in good faith under the above said sections;
No person doing an act in good faith in compliance who has been requisitioned under section 129 and section 130;
- No officer of the armed forces who have done any action under section 131 in good faith;
- No member of the armed forces who did an act that he was bound to do under obedience, shall be deemed to have thereby committed an offence.
This section intends to define the meaning of certain words used in preceding sections. The expressions.
- “armed forces” means all the three- naval, military and air forces, who are operating as land forces. This phrase also includes any other operating armed forces of the Union;
- “officer” is used in regard to the armed forces. A commissioned officer, a Gazetted officer, a Warrant officer, a non-commissioned officer and a non-gazetted officer;
- “member” signifies any person who is a member of armed forces other than the officer.
- Section 144 of CRPC ‘as a preventive measure’ gives the power to issue orders in urgent cases of nuisance or apprehended danger. This section gives power to any Executive Magistrate of the highest rank present to issue an order to prohibit the assembly of five or more people if he is of the opinion that an action for immediate prevention or speedy remedy is necessary to be taken against the apprehended danger in case of emergency.
Clause 1 of the section mentions three situations for such action- Firstly, to prevent obstruction, annoyance or injury to any person lawfully employed. Secondly, to prevent a danger to human life, health or safety. Thirdly, to prevent any disturbance of the public tranquillity or a riot or an affray.
Need and purpose of the dispersal
These sections under the CRPC give powers to the Executive Magistrates as well as police officers to disperse unlawful assemblies as such assemblies may disrupt or have the potential to disrupt public order and peace of society. It may also cause harm to public property and injury to the rest of the public. The Constitution, therefore, has conferred powers upon Executive magistrates as well as other police authorities and also armed forces to disperse such assemblies.
The provision for dispersal of an unlawful assembly is considered important because it has been deemed an offence under section 141 of the IPC and members being a part of it are punishable under sections 143,144,145 and 149 of the IPC.
Even if just one member commits an offence during such assembly, all the persons being part of it will be charged for the same. So, in order to prevent crimes, provisions of dispersal of such assemblies have been given under the CRPC.
In this case, the Court held that:
- Though the powers under section 144, Criminal Procedure Code appear wide, it can only be exercised in grave situations like an emergency. It can be acted upon for the purpose of prevention, obstruction, annoyance or injury to any person who is lawfully employed, or damage to human life and public property, health safety or the disruption of public tranquillity or riot. These factors determine the exercise of this power, therefore regarding this power as being unlimited or excessive would be wrong.
- Since the judgement has to be given by an executive magistrate as to whether in a given circumstance, an exercise of these powers should be made or not, it shall be assumed that the concerned magistrate would exercise those powers in an honest and legitimate manner. Therefore, it can be concluded that this section cannot be struck down on the grounds of misuse and excessive use of powers.
- Though the provisions of section 144 provide a wide amplitude of power, however, the exercise of this power is open to challenge, hence it cannot be said that it infringes or places unreasonable restrictions on certain fundamental rights.
In this case, the Apex Court held that the execution of section 144 by the police was unreasonable as the police did not succeed in providing sufficient grounds for its use of force. The Court also expressed its discontent over the usage of undue force on the sleeping crowd in Ramlila Maidan. The Court held that the police should have waited until a reasonable time if it wanted to disperse the crowd.
The Hon’ble Court held that the assembly that was lawful in the beginning became unlawful right at the moment when one of the members along with the others assaulted the victim and his associates and all the members of the assembly started chasing the victim while he was running to save his life.
In this case, the Supreme Court held that where only five persons have been named and charged for the constitution of an unlawful assembly, one or more of them have been acquitted, the remaining persons who are still accused cannot be convicted for an unlawful assembly since they are less than five in number. However, if it is proven that some other persons were also present but could not be identified and named, then the other accused will be convicted for unlawful assembly.
In this case, the Hon’ble Punjab & Haryana High Court held that three pre essential conditions must be satisfied before an Executive Magistrate can order the use of force to disperse a crowd.
Firstly, there should be an unlawful assembly consisting of five or more persons whose object is to commit violence or likely to cause a disturbance of public peace and tranquillity.
Secondly, an order of dispersal should be given by an Executive Magistrate.
Thirdly, the people don’t move away in spite of such given orders.
Role of section 144 CrPC in current events
As the number of cases of COVID-19 has been on a surge in India, different state governments have been imposing this section accordingly. This highly transmissible virus has caused an uproar all over the world in which India is also affected.
The Maharashtra Government imposed Section 144 in all the cities of Maharashtra from March 22, 2020, in order to contain the transmission of the deadly virus. In Mumbai, police across all the districts have registered around 23,126 cases against those who did not follow orders of movement restrictions under Section 144 of CRPC. As many as 1410 arrests have been made with 7570 seized vehicles from motorists who roamed around for no important reason defying the national lockdown.
In the wake of the protests against the most controversial CAA and NRC, section 144 of CRPC was imposed in various cities or parts of it. In an incident in Bangalore, the authorities had imposed Section 144 as a precautionary measure. Noted historian Ramachandra Guha was detained by police while he defended his right to protest peacefully and attempted to address the media. He claimed this was a misuse of Section 144 because it infringed the right to freedom of speech and right to assemble peacefully.
In the light of the above article, it can be concluded that it can often be a rigorous task for courts to draw the thin line between protecting the right to freedom of assembly and protecting public peace and tranquillity of the community. An executive magistrate is conferred with powers of dispersal and prevention of unlawful assembly in order to prevent any imminent damage to public and public property. However, in a democratic country like India, these powers can be misused as seen in the case of Ramlila Maidan Incident and the fundamental right of freedom to assemble may sometimes be infringed.
However, The Code for Criminal Procedure and the Indian Penal Code consists of sections which place reasonable limits on the authorities empowered to the Executive Magistrates in exercising its powers for dispersal of unlawful assemblies. The CrPC provides various procedures which are to be followed for dispersal of unlawful assemblies which can be exercised by an executive magistrate.
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