This article is written by Sidra Khan, a student of Amity University, Noida. The article discusses the provisions related to Magistrate’s power in urgent cases of nuisance and apprehended danger.
A magistrate has been vested with wide powers under Section 144 of the Code of Criminal Procedure, 1973. It grants certain powers to a magistrate which entails passing an order in cases of nuisance or apprehended danger in society. In order to maintain public peace and public tranquillity, preventive measures can be taken. Any order passed by the magistrate should be in writing and consist of facts of the case.
Specific provisions regarding nuisance are mentioned in the Indian Penal Code 1860, Civil Procedure Code 1908 and Criminal Procedure code, 1973.
Meaning of nuisance
Nuisance can be classified into two parts namely:
1) Public Nuisance
A public nuisance is defined under Section 268 of the Indian Penal Code, 1860. A public nuisance can be defined as any act or omission which causes common danger, injury, or inconvenience to the public at large. Offences against the public are done either by doing something that annoys the whole community or by neglecting something required to be done for common good. An act that is committed or an illegal omission should cause injury in common.
Illustration: Poisonous gases are released from a chemical factory which is harmful to the residents of that vicinity. Hence, will amount to a public nuisance.
2) Private Nuisance
Whereas private nuisance can be defined as an interference with the right of an individual to enjoy his property. It is an act that affects a particular individual or a few individuals and does not affect the public at large.
3 essential grounds that are necessary for the plaintiff to prove private nuisance:
- The plaintiff has a possessory interest in the land.
- The defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property.
- Defendant interference was substantial and unreasonable.
Illustration: X planted a tree in his house, but its roots and branches extend to the house of Y. Hence, it amounts to a private nuisance.
Remedies of Public Nuisance
There are 2 kinds of remedies which can be provided:
1) Civil Law
Civil remedies of public nuisance are mentioned in Section 91 of Civil Procedure Code, 1908.
It states that any wrongful act of a person is affecting the public can be stopped:
- By taking an injunction against its continuance or any other remedy as the court deems fit according to the case.
- A suit can be filed against such an act either by the attorney in general or two or more persons from the permission of a court.
2) Criminal Law
Under Criminal law there are three remedies given:
- Under Section 133 and 144 (Chapter X) of the CrPC
It contains a long list of sections in regard to public nuisance. But Section 133 is the most important one; it provides conditional orders as a remedy for public nuisance. This section empowers a District Magistrate or Sub- Divisional Magistrate or any other Executive Magistrate to pass a conditional order, on receiving a report from a police officer after considering the evidence.
- The prosecution will be conducted under IPC (Chapter XIV)
Any person who commits public nuisance which affects the public health, safety and convenience will be liable under Section 290 of IPC which prescribes a fine of two hundred rupees in cases of public nuisance.
Section 291 of IPC provides for simple imprisonment up to a term of six months or fine or both. This article is going to focus with regard to CrPC.
Rationale behind the Applicable Situations
The provisions dealing with Urgent Cases of Nuisance or Apprehended Danger mentioned under Section 144 of Criminal Procedure Code is seemingly the most popular segment of the Criminal Procedure Code. It gives powers to a magistrate to take immediate action for prevention of any of the circumstances mentioned under Section 133 of the Criminal Procedure Code. A judge may direct any individual to abstain from doing a certain act. A person can obtain an order with respect to a 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 tranquility, or a riot, or an affray.
The prohibitory request made by a magistrate under Section 144 Criminal Procedure Code can stay in actuality for two months, or for six months if so coordinated by the state government. Section 144 of Criminal Procedure Code gives powers to the Executive Magistrates to impose prohibitory orders. This section acts as an effective tool to prevent an outbreak of violence. There are situations under which this section is applicable:
Under Section 144 annoyance can be of two types: Physical Annoyance or a mental annoyance. In case of physical annoyance, there should be proximity between the objects whereas in case of mental annoyance no question of closeness arises. If there is an order passed by the magistrate, under Section 144 dealing with nuisance, even then, it should include injury, danger or breach of peace. Section 144 does not cover defamatory statements or abusive articles until and unless it leads to a breach of peace or health.
Illustration: 2 policemen were obstructed in the performance of their duties and were beaten by the people at liquor shops when they were trying to close the liquor shops on the order of the DM (District Magistrate) so the police imposed Section 144 in the area.
2. Injury to Human Life
Section 144 confers power on a magistrate while passing an order. He makes sure that it should prevent the risk of injury to human life or safety. He doesn’t have any power to make an order for the protection of property. A magistrate should satisfy that, if the act is not prevented now than in the future it will turn out to be an offence.
Illustration: Section 144 is applied in states to ensure social distancing. If people do come in contact with each other, it will result in the spread of coronavirus which causes danger to human life.
3. Disturbance of Public Tranquility
The act which is prohibited under this section is the act which is likely to disturb public tranquillity. It is not enough to say that by stretching it, it would lead to a possibility where to establish a connection of cause and effect between the public tranquillity and the act prohibited becomes necessary. The connection should have reasonability and should not be hypothetical or distant.
Illustration: Section 144 was applied in east Delhi after tensions arose between two communities which resulted in riots and could have possibly disturbed the public tranquillity.
Powers of magistrates in urgent cases of nuisance
Section 144 envisages the powers of a magistrate in urgent cases of nuisance. These powers provide directions in dealing with situations that cause danger to human life, disturb public tranquillity, result in riots or affray. These situations have the potential to create unrest or danger to public peace and tranquillity in any area, due to any disputes.
In the case of Radhe Das v. Jairam Mahto, there was a dispute over a property in which Magistrates passed the order and restricted the defendant from entering the property. Petitioners applied for the restriction of defendants. Defendants also applied for the claim and to restrict the petitioner from entering into it. It was subsequently granted by the Magistrate. The defendants claim that this order is violating their right over the property. The court held that the action should be taken to prevent public peace and tranquillity and the individual rights of a person must be given away for the greater benefit.
1) The orders under Section 144 (1) can be issued by:
- District Magistrate;
- Sub-Divisional Magistrate; or
- Executive Magistrate specially empowered by the State Government.
A magistrate can start the proceedings if there is an immediate or speedy remedy is desirable in the following situations mentioned under this clause:
- Danger to human life;
- Disturbance to public tranquillity;
- Riot; or
2) Ex-Parte decisions can be taken in cases of emergency under Section 144(2)
If there is an emergency or in any circumstances where notice cannot be served to that person against whom the order has directed, be passed ex parte.
3) Orders passed by Magistrate have an expiry date under Section 144 (4)
Such orders expire within 2 months from the date the order has been made or issued.
But in the exceptional cases if the State Government considers it necessary by notifications, it can direct that an order made by the magistrate which is to be enforced for 2 months will continue for a period, not exceeding 6 months.
4) Alteration can be made under Section 144(5)
Any alteration can be made in the order under this section. It can be made by the magistrate himself, or by a magistrate subordinate to him or by a predecessor in his office. Such alteration will be made either on an application by the aggrieved person or even the magistrate himself can do so.
A Procedure needs to be followed by the Magistrate, when section 144 is imposed:
1) Against whom the order has been passed under Section 144(7)
The aggrieved person against whom the order has been passed if he approaches the court under sub-section(5), he will be given the earliest opportunity of hearing.
On the other hand, if his application has been rejected wholly or in part either by the State Government or by the Magistrate, the reasons are to be given the reason in writing.
Sub-section 7 provides that the proceedings should be judicial in nature and evidence would be recorded in an open court before the alteration or a rescinding order is passed.
Certain restrictions can be imposed by a magistrate:
- Section 144 of CrPC restricts the assembly of five or more people in a public place with a common object. As per the code, each person of that ‘unlawful assembly’ will be booked under Section 143 of IPC. Unlawful Assembly is defined under Section 141 of the Indian Penal code. An assembly of five or more persons with a common illegal object is said to be an unlawful assembly. And if the common object of those 5 people composing that assembly is any of the five objects declared illegal under Section 141 of IPC:
- To overawe Government by criminal force;
- To resist the execution of a law or legal process;
- To compel any person to do illegal acts;
- To commit an offence; or
- Forcible possession or disposition of property.
- It restricts the handling of any kind of weapon in the area where Section 144 is imposed. A magistrate can pass an order or by a public notice, declare restrictions in carrying of arms in procession, or holding of, or taking in any mass drill or mass training with arms in a public place. If he has a reason to believe that it is necessary for:
- Public safety;
- Preservation of public peace; or
- Maintenance of public order.
It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects which covers a knife used in a kitchen. If any person violates the and is still engaged in the activity, then he can be detained. Whereas this section doesn’t restrict police officials to carry guns. Police and other security personnel are the only ones who are allowed to carry weapons in the area where Section 144 is imposed.
- As per the Section 69A of the Information Technology Act, the government has the right to shutdown the internet. Section 144 IPC gives power to a magistrate to stop internet access in a region.
In the case of Gaurav Sureshbhai Vyas v. State of Gujarat, the petitioner had challenged shutting down of the internet in parts of Gujarat. He argued that the government should invoke Section 69A of the Information Technology Act that allows the government to block certain sites for the sovereignty and integrity of India. And the internet should not be blocked by the government as a whole in the state.
The court held that the government had not completely blocked the internet. People had access to it through broadband or wifi. It was held that the Section 69A of IT Act was meant to block certain sites, but under Section 144 of CrPC, the government can issue directions to a person responsible for extending the internet access. The court held that in case of law and order situation, the government can ban internet access to bring the situation under control.
Need for the Section
Section 144 is implemented in a certain region in cases of nuisance or if there is a danger that certain situation will make the situation worse or damage the property or human life. It imposes certain restrictions on the personal liberty of the people. If there is an apprehension of danger to human life or any disturbance to public peace and tranquillity. It restricts public gatherings to prevent protests or riots. It prevents people from meeting at public places or from carrying dangerous weapons or restricts carrying any mass drills or mass training with arms in public. The magistrate has certain powers to deal with the urgent cases of nuisance and apprehended danger. Orders can be passed by the magistrate under Section 144 of CrPC and can impose certain restrictions in cases where it is necessary.
Such restrictions will be imposed after the assessment of the situation in the area or region due to some conflict, which has the power to cause danger to public tranquillity. To prevent crime is the duty of administration and to safeguard the law and order in society.
The provisions laid down in Section 144 are not in the excess of the limits as provided in the Constitution of India for limiting the freedoms which are guaranteed under Article 19 (1)(a), (b), (c) and (d). The restrictions put under Section 144 are reasonable and there is an accessibility of adequate safeguards to the individual who is affected by an order issued under this section.
In this case, the Supreme Court upheld the constitutionality of Section 144 stating the reason that it constituted a reasonable restriction in the interest of public order. The court also said that this power should only be exercised in urgent situations. Court laid down five points which justifies the constitutional validity of Section 144 are as follows:
- When an ex-parte order has been passed by the magistrate, a notice should be served to a person against whom it has been passed. Such order must be passed in cases of extreme situations.
- Any person against whom such order is passed, he has a right to challenge that order which shows that that there is no arbitrariness.
- The affected party can challenge the order passed by the Magistrate but it should ensure that its action was reasonable and of a persuading nature.
- An opportunity of being heard is given to a person and also he can show the cause of the order. So, the principles of natural justice are in accordance with this section.
- Section 435 read with Section 439 of this code empowers the High Court to look into the matter and fix the liability of a magistrate as the High Court can quash the order passed by the magistrate.
It was held that the preventive action taken by the magistrate is justified.
To know whether the restrictions which have been imposed under Section 144 of CrPC are reasonable or not, the Supreme Court laid down the test of proportionality in case of;
- Justice K.S. Puttaswamy v. Union Of India Supreme Court laid down the guidelines or the four-fold test to check the proportionality:
- A measure which is restricting a right should be legal;
- It should be a satisfactory means of making progress in a legitimate goal;
- There must not be any less restrictive but equally effective alternative; and
- Right holder should not get affected by the measure.
So, the orders which are passed under Section 144, should be tested on these principles to check their legality.
The Supreme court had criticised the decision of the centre for the imposition of Section 144 in Ramlila maidan against the sleeping crowd.
The Hon’ble court held that such provision which is imposed by the centre can only be used in grave situations, for maintaining public order.
The Hon’ble Supreme Court held that a magistrate can exercise the power conferred upon him where there is an apprehension of danger. But he needs to satisfy that the precautions undertook by him were essential to protect public safety.
As per the four-fold test in section 144, it is not about likelihood or tendency. The Magistrate should be satisfied with certain immediate measures that should be taken to prevent the danger, and protect public safety. Powers vested upon him can not only be exercised in the presence of danger but can also be exercised in cases where there is an apprehension of danger.
So, preventive measures taken by a magistrate are justified.
In this case, the Supreme Court held that any action of a State which is done unreasonably or without sufficiently determining rules is arbitrary and also held that the state can impose certain restrictions on freedom of speech and expression if it shows a close link between public order and speech. And the liability lies on the State to discharge the burden of proof along with evidence.
In this case, the Hon’ble Supreme Court held that a line should be drawn between public order and public tranquillity. There are different forms of public disorders so a boundary should be drawn between the serious and aggravated forms. Which of them are serious should be defined and this can easily be inferred by determining which one of them is a threat to a state.
To prevent the breach of the peace or public tranquillity, a magistrate should take preventive measures and speedy remedy should be given to maintain peace in the society. If there is an apprehension to danger or nuisance the immediate remedy is desirable under such circumstances. Second of all, a magistrate should consider that the directions given by him are effective and they prevent annoyance, injury to human life, and disturbance of public tranquillity. Section 144 turns out to be an effective tool during emergencies; it is mainly imposed by the administration to prevent riots and violence.
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