TMI Blog1969 (10) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... he State Government is not subject to judicial scrutiny and the Code provides no machinery for applying for an order of rescission or alteration of -the order. Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable. It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section, and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place, if he considers that his direction is likely to prevent or tends to prevent obstruction, annoyance or injury, or risk of 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 order must state the material facts of the case and it must be served in the manner provided by s. 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake an order under S. 144(1) is subject to the jurisdiction of the High Court under ss. 435 439 of the Code of Criminal Procedure. Again an order under sub-s. (4) refusing to rescind or alter any order under the section, may be rectified by the High Court. The Magistrate may pass an order in the conditions prescribed in sub-s. (1) and not otherwise. The order does not remain in force for a period longer than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an-affray, directs otherwise. The power to otherwise direct involves authority to extend the duration of the Magisterial order for the ,duration of the danger or emergency. Sub- section (6) however does not authorise the State to make the order of the Magistrate permanent. The State must in otherwise directing take into consideration, whether it is a case of danger to human life, health or safety, or of a likelihood of a riot or an affray in respect of which an order has been made by the Magistrate, and whether it is necessary to extend the period beyond two months and then to direct that the order shall remain in force for a period longer than two mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at account the Magistrate does got become an authority subordinate to the State Government. The State Government is the head of the executive and exercises no authority over the judicial functions of the Magistrates. A Magistrate is independent of the State Government and he is entitled, notwithstanding the declaration made by the State Government, if the circumstances justify, to rescind or alter the order. Under the scheme of division of the executive and judicial functions, it is true that power to make an order under s. 144 is generally vested in Executive Magistrates who are in some matters responsible to the executive authorities. But even under the scheme of separation of judicial- and executive powers the function of the Magistrates exercising power under s. 144 remains judicial. To assume in deciding a constitutional issue, that in the prevailing administrative set-up, an Executive Magistrate invested with power under s. 144 of the Code of Criminal Procedure may not, on extrajudicial considerations, rescind a direction of the State Government is to overlook the distinction between abuse of power and noninvolvement of power. If in a given case, the order is matte on extra-j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of power under section 144 is intended to ensure the maintenance of law and order, and for that purpose the section authorises the Magistrate, exercising judicial power of the State, on being satisfied on sufficient grounds, and where it is necessary that immediate prevention or speedy remedy is desirable, to make an appropriate order. Normally an order made by a Magistrate under sub-s. (1) of S. 144 remains in force so long as it serves its purpose, but not longer than two months. In case the danger or emergency or apprehension thereof is deep rooted, the State Government is competent by direction to extend the duration of the order. The duty of maintaining law and order ordinarily lies on the executive, but since the making of an order under S. 144 involves serious infringement of the rights of the citizens, exercise of, the power is conditioned by a judicial evaluation of the circumstances which necessitate it. Whether the order remains operative for its normal duration, or is extended by direction of the- executive, the Magisterial verdict lends sustenance to it. Apprehension that the executive may abuse the power to extend the duration will not, in my judgment, justify the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hood of a riot or any affray, the (State Government) by notification in the Official Gazette, otherwise directs are liable to be struck down as being violative of any of the clauses in Art. 19 (1 ) of the Constitution. The facts leading to the present proceedings are as follows It appears that there was dispute between two sections of workers in the Tata Workers Union, Jamshedpur. In that connection Shri K. N. Mishra, City Magistrate, Jamshedpur passed an order against respondent Verma under sub-s. (1) of s. 144, Criminal Procedure Code on May 21,1961. He followed up that order by another order against respondents, K. K. Mishra, Sadhu Singh, P. C. Joshi and M. N. Govende on June 20, 1961. Thereafter the State Government of Bihar passed an order under sub-s, (6) of s.144, Criminal Procedure Code and notified the same in the Bihar Official Gazette on July 18, 1961. It is the validity of this notification that is in issue in this case. That notification reads NOTIFICATION The 18th July, 1961. No. 8255 C Whereas the following orders have been made under the provision of section 144, Code of Criminal Procedure, 1898 (V of 1898) by Shri K. N. Mishra, City Magistrate, Jamshedpur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om today, the 20th June 1961, and also call upon you to show cause why this order under section 144, Criminal Procedure Code, should not be made absolute against you--Cause, if any be on 29th June, 1961, 'at 6-30 a.m. Given under my hand and the seal of the Court this 20th day of June, 1961.Sd. K. N. Mishra, City Magistrate, Jamshedpur, 20-6-1961. And whereas the above orders expire on the 19th July, 1961, and whereas the Governor of Bihar is satisfied that the conditions which rendered these orders necessary still exist and that there is apprehension that they may continue to exist for a longer time and that it is necessary that these orders should be tended for a further period beyond the present date of their expiry in the interest of the safety of the life of the inhabitants of the town of Jamshedpur and in order to avoid the risk of riotor affray. Now, therefore, in exercise of the powers conferred by sub-section (6) of the Section 144 of the said Code, the Governor of Bihar is pleased to direct that the above orders will continue to remain in force for a period of four months, with effect from the date of- publication of this notification in the Bihar Gazette, unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him, or by his predecessor in office. (5) Where such an application is received, the Magistrate shall afford to the applicant an early opportunity of appearing before him either in person or by pleader and showing case against the order; and it the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing. (6) No order under this section shall remain in force for more than two months from the making thereof, unless, in cases of danger to human life, health or safety, or 'a likelihood of a riot or an affray, the (State Government) by notification in the Official Gazette, otherwise directs. It may be noted that orders under sub-ss. (1), (2), (3), (4) and (5) of s. 144 can only be passed by superior Magistrates. This Court in Babulal Parate's case(1) sustained the validity of an order made by a Magistrate under s. 144(1) because of the various safeguards provided in the section. It may be seen that an order made by a Magistrate under s. 144(1), Criminal Procedure Code is open to be revised on the basis of any representation made by the aggrieved party and is also revisable by the High Court. An analysis of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 144, Criminal Procedure Code and the same is revisable under s. 435 read with S. 439, Criminal Procedure Code. We shall now proceed to consider whether there is any basis for the new line of argument advanced in this Court. We have earlier seen the scheme of S. 144, Criminal Procedure Code. Its first sub-section empowers the appropriate Magistrate to make any order contemplated therein. The second sub-section confers power on the Magistrate to pass the ex-parte order under certain circumstances. The third sub-section sets out the person against whom the order made by the 'Magistrate can be directed. The fourth sub-section provides for the review of the order by the Magistrate who made the order or his successor in office or by his superior either suo moto or on the representation made by the aggrieved party. The fifth sub-section lays down the procedure to be adopted by the concerned Magistrate to deal with the representation received. The first part of the sixth sub-section fixes the period during which the order made by a Magistrate would be in operation. Once the process set but above comes to an end the Magistrate has no further function. Thereafter it is clear he bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this section the order made by the State Government. If the legislature intended to bring within the scope of this sub-section direction (which really means order) given by the State Government, it would have stated so particularly when it specifically referred to the order made by the Magistrate's predecessor in office or that made by a subordinate Magistrate. The scheme of the section. the language employed therein and our legislative practice militate against the new line of defence adopted on behalf of the State of Bihar, Union of India and the Attorney General in this Court. From a plain reading of S. 144(6), Criminal Procedure Code, it is clear that the power conferred on the State Government is an independent power and it is an executive power. It is not expected to be exercised judicially. It is open to be exercised arbitrarily. The directions given in the exercise of that power need not be of a temporary nature. The ambit of that power is very large and it is uncontrolled. Dr. Singhvi at one stage urged that the only check on the exercise of that power by the Government is the searching scrutiny of governmental actions expected from our legislators. We shall assum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. It is not possible to for- mulate an effective test which would enable the court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. In other words in order to be a reasonable restriction, the same -must not be arbitrary or excessive and the procedure and the manner of imposition of the restriction must also be fair and just. Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable. One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed. No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate, fair and reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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