From: Sandeep Jalan <sndpjalan@gmail.com>
Date: Tue, Aug 16, 2011 at 4:13 PM
Subject: Article: What is imposing of "Section 144"
To:
Section 144 is embodied in Criminal Procedure Code, 1973. The said Code primarily contains the procedural aspect of administration of Criminal trials in our country.
In the backdrop of mutiny of 1857, the Crown of England took over the administration in India and upon full consideration of the premise of 1857, the VICTORIA of the United Kingdom of Great Britain and Ireland, enacted that it should be lawful for Her Majesty, under the Great Seal of the United Kingdom to establish, for them, their heirs and successors, the Criminal Procedure Code 1861, now refashioned as The Criminal Procedure Code, 1973.
The said section 144 of CrPC, 1973, confers wide powers on District Magistrates (The Commissioners of Police in Metropolitan Areas) / Sub-Divisional Magistrates / Executive Magistrates, to issue orders in anticipation of sudden danger to public order / nuisance. The section requires the Magistrate to issue order in WRITING SETTING FORTH THE MATERIAL FACTS of the case. Ordinarily, the said section is invoked against a specified person, who is found or likely to act prejudicial to "Public Ordr / nuisance", directing him to abstain from a certain act. The Order under this section may be directed towards the public generally when when visiting a particular place or area.
The punishment for disobeying the Orders issued under section 144 is provided under section 188 of Indian Penal Code, 1860. The offence is bailable and therefore the Police is obliged to release the arrested person on bail. The punishment on convicion is simple imprisonment for maximum one month or max fine of Rs.200, or both.
The gist of invoking section 144 of CrPC, 1973, is to prevent obstruction, annoyance, injury to any person, or when there is danger to human life, health or safety, or where there is immenent danger to the general Public peace, the empowered Magistrate may issue such Orders so as to prevent that harm and danger to public peace. However, the urgency of situation and that the emergent situation must be sudden and the consequences be grave.
THE PERTINENT / LANDMARK OBSERVATION OF HIGHER COURTS IN THIS RESPECT -
The order imposing and invoking section 144 should not be bald but should contain at least some reasons to show that the Magistrate has applied his mind and was satisfied about the existence of factors necessary for action under section 144. B Linga Murthy versus B Hussain Saheb, 1979 Cri LJ 1147, 1149 http://www.indiankanoon.org/doc/1684376/
It is not an ordinary power flowing from the administrationbut a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. The provisions of section 144 must be construed in the light of Article 19 of the Constitution of India and when so construed, the conclusion would be inevitable that the obstruction, annoyance or injury or any other danger or disturbence sought to be prevented must be justified by clear public interest threatened not doubtfully or remotely, but by clear and present danger. Madhu Limaye versus Sub-Divisional Magistrate, (1970) 3 SCC 746
http://indiankanoon.org/doc/496236/
The authority of the Magistrate exercising powers under section 144 is neither absolute nor supreme but subject to supervision and revision by the Higher Courts and therefore the Magistrate in order to act legally and with propriety, must indicate with reasonble fullness the materials on which they conclude that there was some emergency justifying their action, so that Higher Courts may check and brake them and put them back on rails when they go off. Gopalji Prasad versus State of Sikkim, 1981 Cri LJ 60, 62 (Sikk) http://www.indiankanoon.org/doc/1645593/
A Citizen / person aggrieved by said Order of section 144 may make a representation before the Magistrate who has passed the Order, or may invoke the Revisional Jurisdiction of High Court / Sessions Court; or may approach the High Court under Writ Jurisdiction of Article 226; or may appraoch the SC under Article 32, challenging the propriety of issuing and invoking section 144.
The Supreme Court of India in Nawabkhan Abbaskhan v State of Gujrat allows every person the discretion to make his own decision and disobey the order of the government, if in his opinion, it is illegal. Of course he is answerable and liable, if he turns out to be wrong. (1974) 2 SCC 121; AIR 1974SC 1471.
http://commonlaw-sandeep.blogspot.com/2010/05/do-we-have-discretion-to-disobey.html
The Law of Arrests, if you want to know:
http://commonlaw-sandeep.blogspot.com/2009/06/final-word-on-law-of-arrests.html
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Sandeep Jalan
Advocate
C/o Janhit Manch
Kuber Bhavan,
Bajaj Road,
Vile Parle West,
Mumbai - 400056.
Conceptualizing a basic democratic right – of reply http://commonlaw-sandeep.blogspot.com/2011/04/constitution-of-india-doesnt-recognize.html
Palash Biswas
Pl Read:
http://nandigramunited-banga.blogspot.com/
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