Employing Section 144 CrPC of Rationally
Author:Ria Mittal
Profession- Student
ChanderPrabhu Jain College of Higher Studies
Year- 4th year
Section 144 of Code of Civil Procedure 1973 bars the carry out of certain activities or actions or events which are permitted to be done in regular course. It is imposed to make sure the maintenance of peace and tranquility into an area. This indicates the fundamental right of peaceful assembly which is given under article 19 of the constitution is restricted by the administration if the executive magistrate finds the situation at any certain place presenting a potential to disturbance in maintenance of law and order.
What is Section 144?
Section 144 of CrPC provides power to a District Magistrate, a sub- divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or to the general public in a particular place or area to “abstain from a certain act” or “to take certain order in respect of certain property in his possession or within his management”.
Section 144 of CrPC of 1973 confers the right to executive magistrate of any state or territory to issue an order to forbid the assembly of four or more people in an area. According to the law every member of the such ‘unlawfull assembly’ can be recorded for enganging in rioting. The restriction could be applied in a specific locality or in the entire town. The specifying aspect of imposing such a restriction in assessment of the prevailing situation by the district administration that it must have capacity to cause unrest or danger to peace and tranquility in such an area by reason of certain disputes. Section 144 is imposed in cases of urgency of nuisance or apprehended threat of some event that has the potential to cause difficulties or danger to human life or property.
As per this Section, the order can be passed only “if such Magistrate consider”, that the instructions is likely to prevent
a. Obstruction, Annoyance or Injury to any of the person who is lawfully employed.
b.Danger to the Human Life, Health or safety.
c.Disturbance from the Public Tranquility, or a riot or Affray.
This order can be approved against any particular individual or to a general public. This order can be passed even ex-parte.
In emergency cases, the magistrate can pass these orders without any prior notice to the individual against whom the order is directed.
The section also put restrictions on carrying any sort of weapon of any kind in that area where restrictions has been imposed and people can be detained for violating it. Police or other security personnel are the only one who are allowed to carry weapons in areas and places provided under section 144.
The action under this section is anticipatory, that is, it is used to restrict certain actions even before they actually occur. Anticipatory restrictions are generally imposed in the cases of emergency, where there is an apprehended danger of some actions or event that has the potential to cause serious public nuisance or damage to public tranquility. The significance of action under section 144 is the urgency of the situation; its effectiveness is likely being able to prevent some harmful occurrences. Protection of the public peace and tranquility is the core function of the Government and the aforesaid power is conferred on the Executive Magistrate that allows it to perform that function effectively during the situation of emergency.
It provides full powers on certain Magistrates to take quick action in emergency cases when instant prevention or speedy remedy is desirable. If there is not calling of urgency for the application of a speedy remedy nor apprehension of threat to human life, health or safety, etc., the Magistrate cannot issue an order under this section. As it gets possible to act absolutely and even ex parte it is obviously that the emergency got to be sudden and the consequences must be sufficiently serious. Without it the exercise of the power would be totally ineffective. The Magistrate should implement his mind to see whether the matter is of such emergency as to require an order under this section.
In Ummul Khan V. Executive Magistrate, Union Territory, 1991 this was held that the Executive Magistrate has broad powers under this section. When the Magistrate came to the conclusion that the situation was formed which had disturbed public tranquility and threat to human life, an order passed under section 144 is legal.
Another point which is needed to be considered is that an order under section 144 cannot be of a permanent or a semi-permanent nature. It was held in case of Acharya Jagdisharanand Avadhut V. Police Commissioner, Calcutta where the Anand Margis was prohibited from conductive of Tandava dance on the streets or carry skulls in their processions, by an order of the Commissioner under section 144 of the code of civil procedure. The first order was lasted for two months and then after every gap of two months the Commissioner issued the same order again. This repetition of the order was challenged. The Supreme Court held this act of the Commissioner as an abuse of the power and stated on page 58 that:
“the Parliament has not intended the life of an order under section 144 of the code to continue in force beyond two months when provided by a Magistrate. The framework of that section does not consider repeated orders and in case of such situations warrants steps have to be taken under other provisions of the law when individual disputes are raised. If repetitive orders are made it would obviously amount to abuse of the power conferred by section 144 of the Code.”
The first thing which a Magistrate has must be satisfied about is that there should be a sufficient ground for proceeding under this section and an immediate prevention or speedy remedy is helpful, and the second element which has must to be determined is that the Magistrate should consider that the order which he is about to give, is the one which is likely to prevent or tends to prevent obstructions, annoyance or injury to any of the person lawfully employed, or danger to human life, health or safety of disturbance of the public tranquility or a riot or an affray.
The situations calling for an order must be situations of emergency, and an order passed when there is not emergency is without jurisdiction. The Magistrate has to decide as a matter of fact whether the dispute is likely to carry a breach of the peace or a disturbance of public tranquility. The emergency of a case of nuisance or apprehended danger is essential to be treated under section 144 of the Code, and the orders likely to be passed under this section should be of a temporal nature as presented clearly by sub-section (4) of section 144 provided that no order under this section shall stay in force for more than two months, also it is only necessary that the Magistrate issuing the order must believe that apprehension of nuisance or danger exists. No proof of existence of such apprehension is essential. The record of the Magistrate must show the existence of an emergency which has called for ex parte order under this section or else that there was no enough time to serve notice on the party affect thereby.
An order within this section should be based upon proper proof. If such proof is absent, the Magistrate cannot merely pass an order on the complaint of one party. The proper use of this section is to meet a temporary urgency or maintain things in Status Quo and to not pass an order which has practically the effect of a mandatory order in favour of one of two opposing parties thereby he is able to deprive the other fully of his ordinary legal rights and that too finally at all practical purposes.
Contents of order
•Order must be in writing.
•Order must be specific and definite in terms.
•’Material Facts’ must be stated in the order.
•Prohibition must be clearly stated.
How long section 144 be imposed?
The section is imposed for two months but it can be withdrawn at any moment when the administration believes that the situation has attained normally. The government may extent the validity of restrictions beyond two months and maximum upto 6 months. However, there are some places that are highly sensitive and section 144 have imposed in the surrounding areas all the time. Parliament building and the supreme court are certain areas where section 144 is always in force.
The Violation of section 144 is liable for punishment upto 3 years in jail.
“Our constitution give protection to expressions and disapproval and this cannot be the basis” of invocation of section 144 , CrPC unless there is sufficient material to show that there is possibly to be an instigation to violence or threat to public safety or danger. A three bench of judges headed by justice NV Ramana said-
The bench, which includes justice R subhash Reddy and BR Gavai, said imposing section 144 had direct impact upon the fundamental rights of the public or citizens. Hence this power “must be used responsibly, only as a step to preserve law and order.”
Issues related to Section 144
•The term cases of apprehended danger or nuisance are overly broad and wide enough to provide a magistrate absolute power.
•The prompt remedy against such an order is a revision application to the magistrate himself.
•An individual or aggrieved party can approach the high court by filing a writ petition (Article 226) if his fundamental right are in danger. However this is a time during process.
Conclusion
After careful analysis of the respective section in the view of judicial pronouncement and academic commentaries, it can be concluded with the statement that, section 144, although discretionary, is an essential element in the set of measures that are carried out by the executive body of any district in order to prevent as well as manage urgency situations.The preventive jurisdiction deals with cases, which are urgent in their character, of either nuisance or apprehend danger. The nuisance refers to public tranquility, or riot, or affray. The extremely cases urgency requires the discontinue of the ordinary formalities and preliminaries to the making of an order. Orders can be issued ex parte under this section; but they are always temporary in their duration, for they remain in force for two months only, and also for only in exceptional cases, the State Government can extend the duration for further upto the period of six months. The order under this section is an executive order for preservation of peace. It was held that to carry on trade reasonable restrictions can be imposed for preserving peace and such an order could be said to be invalid as infringement of Art.19(1)(g) of the constitution.