Repetitive orders under Section 144 of Code of Criminal Procedure, 1973 would be an abuse of power.

In its Judgment in Kashmir Lock Down case, the Supreme Court observed that the power under Section 144 of the Criminal Procedure, 1973 cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights.

The Supreme Court held that provisions of Section 144 Cr. P. C. will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

As emergency does not shield the actions of Government completely; disagreement does not justify destabilisation; the beacon of rule of law shines always, the bench observed thus while starting its discussion about the restrictions under Section 144 Cr P C.

The Bench comprising Justice N. V. Ramana, Justice R. Subhash Reddy & Justice B. R. Gavai while summarising the principles on exercise of power under Section 144 Cr. P. C in Writ Petition (Civil) 1031/2019 titled Ms. Anuradha Bhasin Vs Union of India & Ors., held as under:

• The power under Section 144, Cr. P. C., being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.
  
  
• The power under Section 144, Cr. P. C cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
  
  
• An order passed under Section 144, Cr. P. C. should state the material facts to enable judicial review of the same. The power should be exercised in a bona fide and reasonable manner, and the same should be passed by relying on the material facts, indicative of application of mind. This will enable judicial scrutiny of the aforesaid order.
  
  
• While exercising the power under Section 144, Cr. P. C. the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.
  
  
• Repetitive orders under Section 144 Cr. P. C. would be an abuse of power.

The genesis of the issue starts with the Security Advisory issued by the Civil Secretariat, Home Department, Government of Jammu & Kashmir, advising the tourists and the Amarnath Yatris to curtail their stay and make arrangements for their return in the interest of safety and security.

Subsequently, Educational Institutions and Offices were ordered to remain shut until further orders. On August 04, 2019, Mobile Phone Networks, Internet Services, and Landline Connectivity were all discontinued in the Valley, with restrictions on movement also being imposed in some areas.

On August 05, 2019, Constitutional Order 272 was issued by the President of India, applying all provisions of the Constitution of India to the State of Jammu & Kashmir, and modifying Article 367of Constitution of India in its application to the State of Jammu & Kashmir.

In light of the prevailing circumstances, on the same day, the District Magistrates, apprehending breach of peace and tranquillity, imposed restrictions on movement and public gatherings by virtue of powers vested underSection 144 Cr. P. C. Due to the aforesaid restrictions, the Petitioner in W. P. (C) No. 1031 of 2019 claims that the movement of journalists was severely restricted and on 05.08.2019, the Kashmir Times Srinagar Edition could not be distributed. The Petitioner has submitted that since 06.08.2019, she has been unable to publish the Srinagar edition of Kashmir Times pursuant to the aforesaid restrictions.

Section 144 of The Code of Criminal Procedure

Section 144 Cr. P. C empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalfto issue order in urgent cases of nuisance or apprehended danger.

An order can be issued to an individual or the general public in a particular place or area to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management

The order can be passed only if such Magistrate considers, that there is sufficient ground for proceeding under this section and immediate prevention or speedy direction is likely to prevent:

• Obstruction, annoyance or injury to any person lawfully employed
• Danger to human life, health or safety
• Disturbance of the public tranquillity, or a riot or affray

An order passed under this Sectioncannot remain in force for more than two monthsunless the State Government considers it necessary to extend it for preventing danger to human life, health or safety or for preventing a riot or any affray. In this case, it can direct that the duration of the order be extended, the period of the duration of the order not exceeding six months from the date on which the order was made.

Section 144 Cr. P. C is one of the mechanisms that enable the State to maintain public peace. It forms part of the Chapter in the Code of Criminal Procedure dealing with Maintenance of Public Order and Tranquillity and is contained in the sub-­chapter on urgent cases of nuisance or apprehended danger. The structure of the provision shows that this power can only be invoked in urgent cases of nuisance or apprehended danger.

Section 144 Cr. P. C enables the State to take preventive measures to deal with imminent threats to public peace. It enables the Magistrate to issue a mandatory order requiring certain actions to be undertaken, or a prohibitory order restraining citizens from doing certain things. But it also provides for several safeguards to ensure that the power is not abused, viz.­ prior inquiry before exercising this power, setting out material facts for exercising this power and modifying/rescinding the order when the situation so warrants.

Supreme Court while examining the aforesaid safeguards in Section 144 Cr. P. C held as under:

1. Prior Inquiry before issuing Order: Before issuing an order under Section 144 Cr. P. C, the District Magistrate (or any authorised Magistrate) must be of the opinion that: i. There is a sufficient ground for proceeding under this provision i.e. the order is likely to prevent obstruction, annoyance or injury to any person lawfully employed or danger to human life, health or safety or disturbance to the public tranquillity; and ii. Immediate prevention or speedy remedy is desirable.
   
   The phrase opinion suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power conferred under this provision.
   
2. Content of the Order: Once a Magistrate arrives at an opinion, he may issue a written order either prohibiting a person from doing something or a mandatory order requiring a person to take action with respect to property in his possession or under his management. But the order cannot be a blanket order. It must set out the material facts of the case. The material facts must indicate the reasons which weighed with the Magistrate to issue an order under Section 144, Cr. P. C.
   
3. Communication of the Order: The Order must be served in the manner provided underSection 134 Cr. P. C, i.e., served on the person against whom it is made. If such a course of action is not practicable, it must be notified by proclamation and publication so as to convey the information to persons affected by the order. Only in case of an emergency or where the circumstances are such that notice cannot be served on such a person, can the order be passed ex parte.
   
4. Duration of the Order: As this power can only be exercised in urgent cases, the statute has incorporated temporal restrictions—the order cannot be in force for more than two months. However, the State Government can extend an order issued underSection 144 Cr. P. C by a Magistrate for a further period up to six months if the State Government considers it necessary for preventing danger to human life, health or safety or preventing a riot.
   
   Although, a two ­month period outer limit for the Magistrate, and a six ­month limit for the State Government, has been provided underSection 144 Cr. P. C but the concernedMagistrate and the State Government must take all steps to ensure that the restrictions are imposed for a limited duration.
   
5. Act Judicially while Rescinding or Modification of the Order: The Magistrate can rescind or alter any order made by him on his own or on an application by any aggrieved person. Similarly, the State Government may also on its own motion rescind or alter any order passed by it, extending an order passed underSection 144 Cr. P. C. While considering any application for modification or alteration, the Magistrate or the State Government is required to act judicially, i.e., give a personal hearing and give reasons if it rejects the application. Care should be taken to dispose of such applications expeditiously.

Section 144 Cr P C Power exercisable also when there is an apprehension of danger
One of the arguments raised on behalf of the Petitioners was that such orders under Section 144 Cr P C passed in mere anticipation or apprehension cannot be sustained in the eyes of law. Rejecting the same, the Bench adverted to [Babulal Paratev/s State of Maharashtra, AIR 1961 SC 884], wherein it was held that the power conferred by the Section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger. But the Supreme Court qualified it by saying that the danger must be in the nature of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.

Mere disturbance of law and order leading to disorder may not necessarily lead to a breach of public order. Similarly, the seven­ Judge Bench in Madhu Limaye v/s SDM, AIR 1971 SC 2486 further elucidated as to when and against whom the power underSection 144 Cr. P. can be exercised by the Magistrate.

This Court held therein, as under:
24. The gist of action underSection 144is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification.

Cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights

On the concern expressed by Senior Advocate Kapil Sibal that in the future any State could pass such type of blanket restrictions, for example, to prevent opposition parties from contesting or participating in elections, the Bench said:

118..........In this context, it is sufficient to note that the power under Section 144 Cr. P. C. cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic rights. Our Constitution protects the expression of divergent views, legitimate expressions and disapproval, and this cannot be the basis for invocation of Section 144 Cr. P. C. unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger.

It ought to be noted that provisions of Section 144 Cr. P. C will only be applicable in a situation of emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed [refer to Babulal Parate case (supra)]. It is enough to note that sufficient safeguards exist in Section 144 Cr. P .C., including the presence of judicial review challenging any abuse of power under the Section, to allay the apprehensions of the Petitioner,

Another contention raised was that law and order is of a narrower ambit than public order and the invocation of law and order would justify a narrower set of restrictions under Section 144 Cr. P. C. On this, the Bench, referring to various precedents, said:

123. In view of the above, law and order, public order and security of State are distinct legal standards and the Magistrate must tailor the restrictions depending on the nature of the situation. If two families quarrel over irrigation water, it might breach law and order, but in a situation where two communities fight over the same, the situation might transcend into a public order situation. However, it has to be noted that a similar approach cannot be taken to remedy the aforesaid two distinct situations. The Magistrate cannot apply a straitjacket formula without assessing the gravity of the prevailing circumstances; the restrictions must be proportionate to the situation concerned.

Power should be used responsibly
The Bench also observed that such an order can be passed against either a particular individual or the public in general. But it added that orders passed under Section 144 Cr. P. C. have direct consequences upon the fundamental rights of the public in general. The most onerous duty that is cast upon the Empowered Officer by the legislature is that the perception of threat to public peace and tranquillity should be real and not quandary, imaginary or a mere likely possibility. It said:

Such a power, if used in a casual and cavalier manner, would result in severe illegality. This power should be used responsibly, only as a measure to preserve law and order.

Existence of the power of Judicial Review is undeniable
On the question whether there can be Judicial Review of such orders, the Bench said thus:
It is true that we do not sit in appeal, however, the existence of the power of Judicial Review is undeniable. We are of the opinion that it is for the Magistrate and the State to make an informed judgement about the likely threat to public peace and law and order. The State is best placed to make an assessment of threat to public peace and tranquillity or law and order. However, the law requires them to state the material facts for invoking this power. This will enable judicial scrutiny and a verification of whether there are sufficient facts to justify the invocation of this power.

In a situation where fundamental rights of the citizens are being curtailed, the same cannot be done through an arbitrary exercise of power; rather it should be based on objective facts. The preventive/remedial measures under Section 144 Cr. P. C. should be based on the type of exigency, extent of territoriality, nature of restriction and the duration of the same. In a situation of urgency, the authority is required to satisfy itself of such material to base its opinion on for the immediate imposition of restrictions or measures which are preventive/remedial. However, if the authority is to consider imposition of restrictions over a larger territorial area or for a longer duration, the threshold requirement is relatively higher.

An order passed under Section 144 Cr. P. C. should be indicative of proper application of mind, which should be based on the material facts and the remedy directed. Proper reasoning links the application of mind of the officer concerned, to the controversy involved and the conclusion reached. Orders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law.

Written By: Damini Singh Chauhan, Semester 9th, The Law School, University of Jammu.
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