THIS ARTICLE HAS BEEN WRITTEN BY PRAKRITI MITRA FROM TECHNO INDIA UNIVERSITY

Table of Contents

Introduction

Section 144 of the Code of Criminal Procedure (CrPC) empowers a magistrate to issue orders in urgent cases of nuisance or apprehended danger when immediate prevention or speedy remedy is desirable.

This section grants the magistrate the authority to direct individuals to abstain from certain acts or to take certain order to prevent a potential disturbance to public peace and tranquility. The imposition of Section 144 is a preventive measure used by authorities during emergencies or situations where there is an imminent threat to law and order.

History of this Section

Section 144, introduced by the British Raj in 1861, was a crucial tool during the Freedom Struggle to suppress nationalist demonstrations. It is still used in Independent India today, primarily to restrict gatherings and charge unauthorized individuals with rioting.The section allows sub-divisional, district, or executive magistrates to order the public or individuals in specific locations. The maximum penalty for rioting is three years in prison or a fine. Members of an unlawful assembly can be held liable for group crimes. Those who prevent officers from dispersing unlawful gatherings face additional penalties.

Meaning of this Section

The Chief Magistrate of any state or territory may by order prohibit the assembly of four or more persons at any place under Section 144 of the Code of Criminal Procedure (CrPC) of 1973. Any person taking part in a sitting assembly is summoned in that as ‘unlawful assembly ‘ , can be charged with mischief, as per the Indian Penal Code.

Section 144 (Power to issue order in urgent cases of nuisance or apprehended danger)

(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to 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 tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof:

Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.

Section 144 applies in situations where there is a perceived risk of imminent violence or events likely to cause harm or injury to human life or property. According to the order issued under Section 144 of the CRPC, no public meetings or gatherings will be held, and all educational institutions will remain closed for the duration of the order. Certain activities, functions or information permitted in the course of ordinary courses are also prohibited by Section 144 CrPC.

It is used to ensure that tranquility and harmony are maintained in an area. In addition, it is illegal to prevent law enforcement from dispersing an illegal meeting. Authorities are also empowered to restrict access to the Internet under Sec

Scope of Section 144

The law allows for anticipatory orders, and actions do not occur until they actually occur. A judge may order a person to restrict an activity or dispose of property on the basis that the offense is likely to prevent obstruction, nuisance, injury, danger to human life, health or safety, disturbance of the public peace, disorder or disorder tip.

In Radhe Das v. Jairam Mahato’s case, the judge ordered that the defendants be prevented from entering the property, which was later granted. Defendants allege that their rights to the property have been violated in the order. The court ruled that private rights should be granted for the greater public good and that public peace and tranquility should be prevented.

Individual rights can be temporarily abrogated, putting the public good first. Civil rights or property ownership disputes cannot be adjudicated in the case. The idea should be a big block, not just a small block.

This section confers special powers, but judges must ensure that the right is not curtailed, as citizens have the right to express their grievances in public or private An order under section 144 cannot be permanent or semi-permanent .

Features of section 144 in crpc

Section 144 aims to maintain law and order in areas where unrest may occur. It restricts the handling and movement of weapons, with a maximum penalty of three years.

Public gatherings and protests are prohibited, and educational institutions must remain closed. Obstructing law authorities from breaking up illegal gatherings is punishable. Authorities can also prohibit internet access in the area.

Validity of this Section

In Madhu Limaye v. Sub-Divisional Magistrate (1968), Justice Hidayutallah ruled that Section 144 of the Criminal Procedure Code is not unconstitutional if used properly and that the possibility of abuse does not justify its repeal. The Code’s provisions do not go beyond the restrictions on freedom set forth in the Indian Constitution, making Section 144 lawful and constitutional.

The extensive authority granted to some magistrates does not establish unjustifiable restrictions on certain fundamental rights, as the appropriateness of the order is subject to review. In this case, the Magistrate issued a prohibitive order under Section 144 to stop a brawl between two labour union members.

The petitioner contested the clause, arguing that it gave the magistrate arbitrary authority. The Court argued that the power could only be used in an emergency, which limited the magistrate’s ability to act arbitrarily.

It is not necessary to repeal a section only because of a risk of abuse. District Magistrates, Sub-divisional Magistrates, and Executive Magistrates are given the authority to issue written orders to stop public disturbances or address potential threats.

Powers of administration

The magistrate has the power to order someone to refrain from certain actions or follow specific procedures related to property in their custody or administration.
This typically includes prohibitions on mobility, gun carrying, and unlawful gatherings. Section 144 of CRPC typically prohibits gatherings of four or more individuals, but can also impose restrictions on a single person.
The magistrate can issue an order to prevent hindrance, irritation, harm, danger to human life, health, safety, public calm, riots, or affrays.
Orders under Section 144 can only be in effect for two months from the order’s date, but the overall duration cannot exceed six months.

Constitutional Validity

The provisions of Section 144 of the CrPC are not exceeding the constitutional limits for restricting freedoms under Article 19(1) (a), (b), (c), and (d). The restrictions are reasonable and there are sufficient safeguards for those affected by an ex-parte order. If properly applied, the section is not unconstitutional.

The Supreme Court justified the constitutional validity of the section by stating that if an ex-parte order is passed, a notice must be served, the person against whom the order is being passed has the right to challenge it, the principles of natural justice are in accordance with this section, and the injured party can challenge the order, ensuring the magistrate’s action is reasonable and convincing.

The High Court has the power to look into the matter under Sec 435 and Sec 439, ensuring the magistrate’s liability. Therefore, preventive action under Section 144 is justified. The case of Madhu Limaye v S.D.M. Monghyr affirmed that the fact that it may be subdued is not a ground for holding it as violative of the constitution.

Use of this Section

In a society where even seemingly simple issues are debated due to official propaganda, WhatsApp forwards, and social media trolls, Section 144 restrictions have been in place for months without the Supreme Court intervening. In Srinagar, the government of Jammu and Kashmir imposed restrictions under Section 144 CrPC, shutting down mobile, broadband Internet, and cable TV services.

House arrests were also imposed on state leaders Omar Abdullah, Mehbooba Mufti, and Sajad Lone. Home Minister Amit Shah announced that Article 370, which granted J&K special status and autonomy, had been repealed due to a President’s gazette order.

The Supreme Court of India ruled in January 2020 that access to information via the Internet is a basic right under the Indian Constitution. Any government limitation on Internet access must be transitory, restricted in extent, legitimate, essential, and reasonable.

Courts can examine the government’s orders barring Internet access. The idea was that the Internet would be suspended only in the most extreme circumstances, such as a public emergency or a threat to public safety.

In conclusion, section 144 should only be applied when there is an immediate and extreme need and should be temporary in nature.

Backdrop of this Section

The section is criticized for its broad terms, potentially giving magistrates unjust authority. The first recourse against such orders is a revision application to the magistrate. If a person’s rights are violated, they can file a writ petition before the High Court, but concerns exist that rights may have already been violated before intervention.

Punishment for the violation of the section

Section 144 of the Indian Penal Code (IPC) prohibits carrying any weapon in the region where it is implemented, with a maximum penalty of three years in prison. Disobedience to these orders is charged under Section 188 of the IPC.

The police have the authority to use these subsections against violators, depending on the nature of the offense. If a minor infraction occurs with more than four people present in a public area, Section 188 (1) of the IPC will be used to initiate the process. The offender will be detained for a while and released on bond.

If found guilty, the sentence could result in up to one month of simple jail. However, violations under Section 188 (2) of the Act are recorded if the gathering poses a threat to public safety or law and order.

If a person violates Section 144, the police can arrest them for up to 24 hours before releasing them on bond. If found guilty, the maximum penalty is six months of simple imprisonment.

CASE LAW:

The Babulal Parate vs State of Maharashtra Case of 1961

The Babulal Parate vs State of Maharashtra Case of 1961 established that the magistrate must be satisfied that prompt prevention of specified activities is necessary to offset public safety threats, and the power provided by this provision can be used when there is a current threat or fear of harm.

Madhu Limaye case vs Sub-Divisional Magistrate, Monghyr and ors. of 1970

The Supreme Court upheld Section 144’s constitutionality, stating it is a legitimate limitation for public order, but only for emergency and urgent cases.

Conclusion

Section 144 of the CrPC grants the District Magistrate significant powers to maintain public order and prevent disturbances. They can issue orders and impose restrictions on gatherings, movement, and activities in specific areas.

These powers are judiciously exercised to prevent threats to public peace and tranquility. However, careful consideration of circumstances and adherence to proportionality are necessary. The District Magistrate must balance the need for restriction with the preservation of individual freedoms to ensure harmonious coexistence in society.