SECTION 144, CODE OF CRIMINAL PROCEDURE,1973
Author: Bhavya Nayyar
IP university
ISSN: 2581-8465
ABSTRACT
Section 144 of the code of criminal procedure 1973, gives power to the district magistrate, a sub-divisional or any other executive magistrate on the behalf of the state government to issue an order to an individual or to the general public in a particular place or an area to impose restrictions on the personal liberties of individuals and to issue order absolute at once in urgent cases.
Section 144 is only applicable to the situations which are likely to cause 1. Obstruction, annoyance or injury to any person who’s lawfully employed. 2. Danger to human life, health, or safety. 3. Disturbance of the public tranquillity, or a riot or affray. Section 144 can only be invoked when the threat is immediate and the restrictions are very much necessary to prevent the immediate threat. Such orders can only be issued for 2 months and the state government can extend its validity maximum up to 6 months and powers are supposed to be used only in the cases of emergency and only when a quick response is required.
When section 144 is imposed it restricts the public gathering of five or more people, it restricts the movement of the public, restricts carrying any sort of weapon in that particular area where the section is imposed, all educational institutes are closed, restricts holding any kind of public meetings or rallies.
Section 144 can be withdrawn anytime if the situation becomes usual. When any person goes against the section imposed then the person can go up to the punishment of three years imprisonment and/or fine. The order must be in writing and such be specific and definite in terms, it must contain materialistic facts and should clearly mention about the prohibition.
INTRODUCTION
Section 144 of the Code of Criminal Procedure 1973 is as enacted in the year 1973. It grants the executive magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in a specific area. It gives power to the district magistrate, a sub-divisional or any other executive magistrate on the behalf of the state government to issue an order to an individual or to the general public in a particular place or an area to impose restrictions on the personal liberties of individuals and to issue order absolute at once in urgent cases. It is imposed to prevent protests that can lead to riots and cause trouble or damage to human life or property. This section deals with the emergent situations and in urgent cases of nuisance and apprehended danger. It is mandatory for the magistrate to issue an order in writing specifying the materialistic facts of the situation and it should match up to the directions mentioned under section 134 of Crpc,1973.
Section 144 is generally imposed when magistrate considers that imposing such order would prevent or tend to obstruct annoyance or injury to any person who’s lawfully employed or danger to human life, health, safety or disturbance of the public tranquillity or a riot or protest. No order can remain to be in force for more than two months from the date of the order issued unless and until the state government considers it necessary. It can be withdrawn anytime if the situation becomes normal. But the total period cannot extend to more than 6 months. This section includes restrictions upon the movement, carrying arms, and form unlawful assemblies. All the establishments like schools, colleges, workplaces should be completely shut down. It also empowers the authorities to block internet access.
Any citizen defying the section shall be punished under section 188 of the Indian penal code,1860. Violation of such order invites the punishment of three years.
The main purpose if this section is to maintain peace and order in the areas where there’s a probability if trouble that can erupt regular life. The powers conferred in the name of the magistrate are limited and the magistrate cannot make an order for the protection of property and there should be the justification to prevent injury or risk of injury to human life or safety.
The primary function of the government is to preserve public tranquillity. The actions under this section are foreseen and it is utilized to restrict certain actions even before they actually occur. These anticipatory actions are generally imposed in the case of an emergency where there is a prediction of an apprehended danger that may cause a public nuisance or harm public tranquillity. This section is basically imposed to prevent harmful occurrences. The magistrate cannot issue an order under this section if there’s neither an urgency calling for the application of a speedy remedy nor a realization of danger to human life or safety. The magistrate has to apply his sense and see whether the situation is a matter of urgency or not and should take further steps accordingly. The powers vested in the name of the magistrate are extraordinary and enables the magistrate to drape the lawful rights of persons though it is very necessary for the magistrate to understand that each and every person has a right to raise a voice for the grievances so caused and ask for redressal for the same. If the magistrate feels that such suspension of rights will contribute to secure public safety and peace then he can use his power to issue such order.
If the mere statement of the magistrate shows that the facts mentioned therein are of no urgent necessity for action then the decision taken by the magistrate would be called futile and won’t be enough to give him jurisdiction even when the magistrate states that he considered the facts to be imminent because this order can only be issued when there are chances of disputes which can lead to a breach of peace and harmony and can also lead to nuisance and hamper the public tranquillity. It is very necessary for the magistrate to disclose the facts of the case and inform the existence of an emergency which leads to an ex parte order and informs that there was no sufficient time to serve prior notice for the same. The order so issued must carry proper evidence and if there’s no evidence then the magistrate cannot pass an order.
PARTICULARS OF ORDER
- Order must be written.
The order issued by the magistrate should always be in writing and should be directed to the accused before he can be prosecuted for disobedience of the order. Section 144 gives special powers to the magistrate hence it is very important for the magistrate to promulgate his order clearly to the public or to the person affected by it so that they are aware of all the things that they are prohibited from doing.
- Order can be issued without any evidence.
It is not mandatory that the order issued by the magistrate should contain evidence before issuing the order because this section is merely imposed on the basis of the assumption and is merely taken to avoid the upcoming circumstances which may harm public tranquillity and peace.
- Order must be specific.
The order must contain all points which are direct and should not contain any vagueness in it. The magistrate has to determine clearly which act or conduct is being prohibited and the people who are being prohibited to do such acts. Obscureness should be avoided as much as it is possible.
- Order must contain materialistic facts.
The order must contain materialistic facts on the basis of which such order is being imposed. The provision of section 144 states that only materialistic facts are required and not the detailed substance of the information on the basis of which such order is being imposed. It is very important to create a link between the act prohibited and the danger that is foreseeable.
- Order must clearly state what is prohibited.
The order such clearly portray what is being prohibited and should not leave any person in doubt as to whether the person is prohibited from doing the thing or not except the order which is addressed to the whole public (under sub-section 3). It is very much necessary for the order to be clear because if the order is not definite and clear then it’s enforcement is very difficult.
GROUNDS FOR THE APPLICATION OF SECTION 144.
- INDIGNATION
Indignation can be of any type either it can be physical or mental. There must be a danger to life or health or an affray or a riot or breach of peace. This section should not be abused by using it for dealing with abusive articles or defamatory statements as they do not lead to a breach of peace.
- INJURY TO HUMAN LIFE
The magistrate is in no position to impose section 144 merely for the protection of property. The magistrate can only the jurisdiction related to the cases where there’s a risk to human life or safety.
- DISTURBANCE OF PUBLIC TRANQUILITY
This section is imposed merely on the assumptions and must be made after establishing a connection of cause and effect between the act which is being prohibited and also the disturbance to public peace and harmony.
CASES
- Dr. Ram manohar Lohiya case,1967[1]
The supreme court in this case held that “no democracy can exist if ‘public order’ is freely allowed to be disrupted by a section of the citizens.”
- Radhe Das v. Jairam Mahto[2]
This case was related to the dispute of a property and the petitioners asked for the restrictions on the respondent to enter the property and so was granted by the magistrate and in the response of this action, the respondent said that their right over property was being violated by this action of the court. The court held that “if the situation demands any action, then for the prevention of public peace and harmony the individual rights of a person can absolutely be renounced for the greater benefit of the society at large.”
- Acharya Jagdisharanand avadhut v. Police commissioner [3]
This case involved the order which was imposed by the magistrate for two months and then after every two months, the commissioner used to issue the same order. And in this case, the repetition of such order was challenged and the court held “ the parliament never intended the life of an order under section 144 of the code to remain in force beyond two months and the magistrate doesn’t hold the power to contemplate repetitive orders and if such orders are made it would clearly result into the abuse of powers so conferred.”
- Ramlila Maidan,2012[4]
In this case, section 144 was imposed against the sleeping crowd in Ramlila Maidan and the same was criticized and the court held that “such provision could only be used in intense situations for maintaining the harmony and it should be a circumstance which is sudden.”
- Madhu Likaye v. S.D.M Monghyr[5]
In this case, the court held that “section 144 is valid and constitutional if properly applied and it can be abused is no ground for it being struck down.
CHALLENGES
- The wide powers conferred in the name of the magistrate can be misused.
- Even when the aggrieved party has the right to file an appeal under Article 226 of the Indian Constitution for the infringement of his rights, the fear exists that even before the intervention of the High court, the rights of that person already encroach.
- Section 144 is imposed upon the whole state even when in some areas the situation is not that critical which makes it difficult for the people living in that certain area to survive.
CONCLUSION
Section 144 is an efficient tool to deal with emergencies which can be seen after looking at history and it is the best tool to address the problem of foreseen riots and violence. However, if the executive powers are used with some specific objectives then the powers are abused and misused that is why it is very much important for the administrations to be accountable for their actions and there are various shackles on the actions of the administration’s so as to prevent any unfairness, vagueness, and arbitrariness in the order. Also to prevent any mishaps this section confers the High court to revise the decisions of the magistrate which makes it more rational though there’s a need of the balance between the absolute powers by the legislature and the emergent situations so that the personal liberty and other rights given to the citizen of India under Article 21 are protected.
[1] 1996 AIR 740, 1996 SCR (1) 709
[2] 123 Ind Cas 73
[3] 1984 AIR 512,1984 SCR (1) 447
[4] 2012 5 SCC 1
[5] 1971 AIR 2486,1971 SCR(2) 711