What is section 144?

Under the Criminal Procedure Code (hereinafter the Code) wide powers have been
conferred on an Executive Magistrate to dea with emergent situations. One such provision
deals with the Magistrates powers to impose restrictions on the personal liberties of
individuals, whether in a specific locality or in a town itself, where the situation has the
potential to cause unrest or danger to peace and tranquility in such an area, due to certain
disputes. In brief, Section 144 confers powers to issue an order absolute at once in urgent
cases of nuisance or apprehended danger. Specified classes of magistrates may make such
orders when in their opinion there is sufficient ground for proceeding under the section and
immediate prevention or speedy remedy is desirable. It requires the magistrate to issue the
order in writing setting forth the material facts of the case and the order is to be served in
the manner provided by section. 134 of the Criminal Procedure Code. The wording of the
section envisages a situation wherein the power provided there under may be exercised on
the assessment of the Magistrate himself - a subjective satisfaction. However, the judicial
pronouncement as dealt with in the paper, aptly show that certain stringent conditions have
been imposed by the Courts on this most plenary powers. Therefore, as the case law
discussed would indicate, not only would the Court consider the situations as assessed by
the Magistrate but would also take into cognizance factors as to whether the orders issued
under section 144 were vague or directed to a specific person.

Therefore, in many cases the orders issued under the provision may be struck down not
squarely on the grounds that such orders were not warranted by the circumstances, but also
due to factors that the orders so issued did not specifically mention the area on which the
restriction are imposed and so on. The Courts have therefore laid much emphasis on the
importance of following guidelines mentioned under section 134 as also in the various sub-
section of section 144.

Scope of Section 144 of the Criminal Procedure Code

Action under this section is anticipatory, that is, it is utilized to restrict certain actions even
before they actually occur. Anticipatory restrictions are imposed generally in cases of
emergency, where there is an apprehended danger of some event that has the potential to
cause major public nuisance or damage to public tranquility. The gist of action under S.144
is the urgency of the situation; its efficacy is the likelihood of being able to prevent some
harmful occurrences. Preservation of the public peace and tranquility is the primary
function of the Government and the aforesaid power is conferred on the Executive
Magistracy enabling it to perform that function effectively during the emergent situations.

In the case of Radhe Das v Jairam Mahto the dispute was over a piece of property. The
petitioners applied for restriction on the respondent from entering the property, which was
ordered by the Magistrate under Section 144. However, while the judicial proceedings were
in way the respondents too claimed for the same prohibition on the petitioners, which was
subsequently granted by the Magistrate under the same section. The respondents in
response to this order brought the present action on the ground that their right over the
property was being violated by the order. The court held that if the situation demands any
action, then for prevention of public peace and tranquility, the individual rights of a person
can be renounced for the greater benefit of the society at large. In the words of:
"To give jurisdiction under this section, the Magistrate shall be of opinion that immediate
prevention or speedy remedy is desirable and that the direction he proposes to make is
likely to prevent a disturbance of the public tranquility or a riot or an affray. In such
circumstances private rights must give way."
The principles that must be borne in mind before the application of this section has also
been elaborated upon in the case of Manzur Hasan v Muhammad Zaman and
approved in the case of Shaik Piru Bux v Kalandi Pati. They are:

1. Urgency of the situation and the power is to be used for maintaining public peace and
tranquility
2. Private rights may be temporarily overridden when there is a conflict between public
interest and private rights
3. Questions of title to properties or entitlements to rights or disputes of civil nature are not
open for adjudication in a proceeding under section 144.
4. Where those questions have already been decided by the civil courts or by judicial
pronouncements, the Magistrate should exercise their power under section 144 in aid of
those rights and against those who interfere with the lawful exercise thereof.
5. The consideration should not be that restriction would affect only a minor section of the
community rather that a large section more vociferous and militant.

It confers full powers on certain Magistrates to take prompt action in cases of emergency
when immediate prevention or speedy remedy is desirable. If there is neither an urgency
calling for the application of a speedy remedy nor apprehension of danger to human life,
health or safety, etc., the Magistrate cannot issue an order under this section. 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 be totally
futile. The Magistrate should apply his mind to see whether the matter is of such urgency as
to require an order under this section.

Though the power conferred under this section is extraordinary considering the fact that it
enables them to suspend the lawful rights of persons if they think such a suspension will be
in the interest of public peace and safety. But the Magistrate should bear in mind that every
citizen has a right to ventilate his grievances either in public or in private and ask for
redress. This right cannot be curtailed so long as it is exercised in a lawful manner. It is an
illegal assumption of power to issue an order under this section on a pretended
apprehension of the danger of the breach of the public peace. However, section 144 is
intended to provide for an emergency, and it is idle to contend that in an emergency when a
riot is apprehended and when there is apprehension of a serious disturbance of the public
tranquillity, the Magistrate is required to deliberate upon and decide the rights of the
parties before acting.

The petitioner in this case was stated to be the greatest Pir of Sind, and held an annual
religious festival, which was objected to a large number of Muslims. Considering the
situation the DM of the state by an order under section 144 prohibited the celebration of this
'festival'. This order was objected by the pir and his followers as it curtailed their rights to
worship. The Court disagreed with this contention and answered the argument through the
following reasoning:

"this section is intended to provide for an emergency, and it is idle to contend that in an
emergency, when a riot is apprehended and where there is apprehension of a serious
disturbance of the public tranquility the Magistrate is required to deliberate upon and
decide the rights of the parties before acting."
The order must state the facts on the basis of which the Magistrate has decided to invoke
this section. The mere statement of a Magistrate that he considered the case to be imminent
is not sufficient to give him jurisdiction, if the facts set out by him show that really there was
no urgent necessity for action in this connection.

Another point that needs consideration is that an order under section 144 cannot be of a
permanent or a semi-permanent nature. This was held in the case of Acharya
Jagdisharanand Avadhut v Police Commissioner, Calcutta where the Anand Margis
were prohibited from conducting Tandava dance on the streets or carry skulls in their
processions, by an order of the Commissioner under section 144 of the code. The first order
lasted for two months and then after every gap of two months the Commissioner again
issued the same order. This repetition of order was challenged.

The Supreme Court held this act of the Commissioner as an abuse of power and
stated on page 58 that:
"the Parliament never intended the life on an order under section 144 of the code to remain
in force beyond two months when made by a Magistrate. The scheme of that section does
not contemplate repetitive orders and in case the situation so warrants steps have to be
taken under other provisions of the law when individual disputes are raised. If repetitive
orders are made it would clearly amount to abuse of the power conferred by section 144 of
the Code."

Rationale for the application of Section 144

Orders under this section are justifiable only when it is likely to prevent any of the following
events from happening
1. Annoyance: Annoyance may be either physical or mental. In the case of physical
annoyance a certain degree of proximity between the object annoyed and the annoyance is
necessary, but in the case of mental annoyance no question of proximity arises. This section
covers both kinds of annoyance. Section 144 Criminal Procedure Code, can be used even
against newspapers in proper cases of incitements to breaches of the peace or to commit
nuisances, dangerous to life or health or to annoy officers lawfully employed. Even where an
order under this section deals with a 'nuisance' there must be a danger to life or health
involved, or of an affray or riot or breach of the peace. Mere defamatory statements, and
even highly objectionable abusive articles against prominent officials, cannot be dealt with
under this section unless they are likely to lead to a breach of the peace or to a nuisance
endangering life or health. The section should not be abused by using it for dealing with
abusive articles and defamation not likely to lead to a breach of peace.

2. Injury to Human life: A Magistrate has no jurisdiction to make an order under this
section merely for the protection of property. He has got to be satisfied that the direction is
likely to prevent injury or risk of injury to human life or safety. Most of the acts
contemplated by this section are of the nature that if not prevented they will develop into an
offence. But there is at least one item about which this limited view is not possible. The word
'injury' as defined under section 44 of the IPC states 'any harm whatever illegally caused to
any person, in body, mind, reputation or property', and the word 'illegal' defined under
section 43 of then same Code is applicable to 'everything which is prohibited by law, or
which furnishes a ground for a civil action'. Whenever, an injury is caused to a person the
recourse to this section can be taken in those situations. So, even if the act or the measure
complained of be not such as would amount to an offence when allowed to be completed
would furnish grounds for a civil action only, the protection of this section will extend to the
person.

3. Disturbance of public tranquility: The act prohibited under this section must he so
prohibited if it is likely to prevent obstructions, etc., or disturbance of the public tranquility,
etc. it is not enough to say that by stretching several possibilities one after the other, it is
possible to establish a connection of cause and effect between the act prohibited and
disturbance of public tranquility. The connection must be reasonable or proximate and not
merely speculative or distant. Where there are no circumstances peculiar to the locality and
the matter is or of general impression, the absence of any near or reasonable connection
between the prohibited act and the supposed danger to public tranquility will be a ground
upon which the High Court is bound to act.

4. Order cannot be made to give advantage to one party: The section does give wide powers
to the Magistrate, and imminent danger to the public peace may justify interference with
even private interests. But the section is not to be invoked by one party to a dispute to
secure a material advantage over the other.

Constitutional Validity of this section

Hidayutallah, C. J., stated in the celebrated case of Madhu Likaye v S.D.M. Monghyr, that
section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and
the fact that it may be abused is no ground for it's being struck down. And the provisions of
the Code properly understood are not in excess of the limits laid down in the Constitution
for restricting the freedom guaranteed in it and that is precisely why the Court held that
section 144 of the Criminal Procedure Code is valid and Constitutional.

Since the propriety of the order is open to challenge, it cannot be said that by reason of the
wide amplitude of the power which section 144 confers on certain magistrates, it places
unreasonable restrictions on certain fundamental rights. The conferment of such wide
powers on the Magistrate does not therefore amount to an infringement of the rights
guaranteed under the Constitution. In this case, the Magistrate gave a prohibitive order
under section 144 in order to avoid a scuffle between members of two labour unions. The
petitioner here challenged the provision as giving arbitrary powers to the Magistrate. For
calling the power not as arbitrary the court said that as this power can only be exercised in
cases of emergency, therefore it in a way restricts that act of the Magistrate. Just because
there is a chance of abuse does not mean that the section should be struck down.

There were a number of contentions raised by the counsel of the petitioner however; the
Supreme Court demolished each of them one by one. There were five points enumerated in
the judgement, which justified the constitutionality of section 144. They are as follows.

1) Although the Magistrate has a power under this section to pass orders ex-parte¸ however
generally the procedure that is followed is to serve a notice to the person against whom the
order is being passed. Only in cases of extreme critical situations that the Magistrate has to
resort to passing an ex-parte order.

2) Additionally, the persons aggrieved by the order have a right to challenge the order on the
grounds they find appropriate. This supports the view that the power granted under this
section is not arbitrary.
3) To substantiate the above, an opportunity for hearing and to show cause is also provided
to the person challenging the order of the Magistrate. Therefore, the principles of natural
justice are also complied with under this section.

4) Next the court also stated that the fact that the aggrieved party has the right to challenge
the propriety of the order, makes the action of the Magistrate more reasonable and based on
cogent reason.

5) Finally the High Court's power of revision under section 435 of the Code read with
section 439 of the code also makes up for the condition that the order under section 144 is
non-appeal able. The High Court can either quash the order or ask the Magistrate for the
material facts, therefore ensuring accountability of the Magistrate.

Since the decision of the Supreme Court in the case mentioned above there has been a
number of cases where the courts have accepted this approach and held that the preventive
action under section 144 is justified.

Additionally, any restriction, which is opposed to the fundamental principles of liberty and
justice, cannot be considered reasonable. One of the tests to find out whether a restriction is
reasonable or not is to see whether the aggrieved party has a right of representation against
the restrictions 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 reasonable. Further, the courts have to see whether the
restrictions are in excess of the requirement or whether it is imposed in an arbitrary
manner.

Condition precedent to assuming jurisdiction

The first thing which a Magistrate has got be satisfied about is that there is sufficient ground
for proceeding under this section and an immediate prevention or speedy remedy is
desirable , and the second element which has got to be established is that the Magistrate
should consider that the direction which he is about to give, is one which is likely to prevent
or tends to prevent obstructions, annoyance or injury to any person lawfully employed, or
danger to human life, health or safety of a disturbance of the public tranquility or a riot or
an affray. The circumstances calling for an order must be circumstances of emergency, and
an order passed when there is no emergency is without jurisdiction. The Magistrate must
decide as a matter of fact whether the dispute is likely to lead to a breach of the peace or a
disturbance of public tranquility.

The urgency of a case of nuisance or apprehended danger is essential to its treatment under
section 144 of the Code, and the orders to be passed under this section must be of a
temporary nature as is shown clearly by sub-section (4) of section 144 providing that 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.
Where this essential preliminary to assuming jurisdiction is not found to exist, his order
must be deemed to be an order having no legal force and any expression of opinion
contained therein must be deemed to be void of legal force or effect. This section is to be
applied in cases of urgency and should not be allowed to take place of any other provision of
law which might be more appropriate. And before proceeding under this section, the
Magistrate should hold an enquiry and record the urgency of the matter. For the purposes of
section 144, it is only necessary that the Magistrate issuing the order should believe that
apprehension of nuisance or danger exists. No proof of existence of such apprehension is
necessary. The record of the Magistrate should disclose the existence of an emergency which
called for an ex parte order under this section or that there was no sufficient time to serve
notice on the party affected thereby.

An order under this section must be based upon proper evidence. In the absence of such
evidence, the Magistrate cannot pass an order merely on the complaint of one party. The
proper use to be made of this section is to meet a temporary urgency or keep things in
Status Quo and not to pass an order which has practically the effect of a mandatory
injunction in favour of one of two opposing parties whereby he is able to deprive the other
completely of his ordinary legal rights and remedies and that too finally for all practical
purposes.

Contents of order

(a) Order must be in writing - The words used under section 144 is "a written order"
and therefore the order issued under this section must always be in writing. There must be a
written order directed to the accused and duly promulgated before he can be prosecuted for
disobedience of the order. If there is no written order, a prosecution under section 188,
I.P.C., for the disobedience of a mere verbal order cannot stand.

As this section empowers a Magistrate to interfere materially with the liberty of the subject,
it is necessary that he should promulgate his order in terms sufficiently clear to enable the
public, or persons affected by it, to know exactly what it is which they are prohibited from
doing. It is for this reason that section 144 itself makes it obligatory for the Magistrate in
any such order to indicate the material facts, which justify such an order. However, it is not
mandatory for the Magistrate to take evidence before issuing such an order.

(b) Order must be specific and definite in terms - The order under this section must
be one, which is absolute and definite in terms. Section 144 (1) and (2), do not contemplate
the passing of a conditional order to be made absolute later on or one that is pregnant with
vagueness. This is imperative, as the person(s) to whom this order is issued must know
exactly what is that he is prohibited from undertaking.

It is vital for the Magistrate to mention the following in the order under section 144. They
are, firstly 'the act/conduct which is prohibited' and secondly 'the people who are prohibited
from doing so'. The order should have names of specific persons and the prohibited act
should be explained with reasonable precision. Ambiguity of any kind should be avoided as
much as possible.

(c) 'Material Facts' must be stated in the order - The order must contain a statement
of the 'material facts', which the magistrate considers to be facts of the case and upon the
footing of which he bases his order. The provision of section 144 only require the 'material
facts' to be stated and not the grounds or reasons or the detailed substance of the
information on which the order is based. Where the order did not state the material facts, it
was set aside. To justify an order under section 154, there must be a causal connection
between the act prohibited and the danger apprehended.
Where the order does not show that there is any emergency for which the order has been
issued, the order cannot be sustained.

(d) Prohibition must be clearly stated - The thing, which is prohibited, must be clearly
stated. It is not proper to leave in doubt as to whether the persons are prohibited from doing
a thing or not. The order must state as to against whom the prohibition order applies, and
what are they prohibited from doing or required to do. Except where the order is addressed
to the public in general (as under sub-section 3), the persons against whom the orders are
directed must be specified. If the order is not definite and clear, it becomes extremely
difficult for enforcement. Thus for example, if an order were directed to the public, which
frequents public or private streets in a particular city, such an order would be considered to
be sufficiently definite as to place, and hence cannot be held to be vague. It must however be
cautioned that the duration of the order must be co-extensive with the emergency.

Service of the prohibiting order under section 144

In this section of the paper, we would deal with the next stage of orders issued under section
144. Once the form of the order is proper, the Magistrate must then serve the order upon
those expressly mentioned in the order itself. For this, section 134 of the Criminal Procedure
Code is attracted. However, occasions may arise when it is not possible to distinguish
between those people whose conduct must be controlled and those whose conduct is clear.
In these circumstances a general order may be necessary where the number of persons is so
large that distinction between them and the general public cannot be made; in these
circumstances a general service of order is done through publication of the order in a daily
newspaper etc.

Nevertheless, under section 134 the order must be served on the person against whom it is
made (sub-section 1); or else, when such personal service is not feasible a copy of the said
order must be stuck up at such place(s) as may be deemed fit (sub-section 2). The notice
issued must be follow the terms of the order passed and should not be couched in wider
terms. Therefore, if the said procedure were not properly followed, the order made would
then be deemed illegal. The person can then not be convicted for any defiance of the order
under section 188 of the Criminal Procedure Code. However, if it can be shown that the
person against whom the order was directed did in fact have knowledge of such order being
issued against him, any irregularity in the method of promulgation would not by itself make
the order ultra vires.

Duration of the Order

As expressly mentioned in the section, any order passed under section 144 shall be subject
to sub-clause (4) and would therefore be valid only for a period of two months. As it has
already been remarked earlier, it is not competent to a Magistrate to revive or resuscitate his
order from time to time. Such an exercise of power would clearly constitute abuse of power.

The state government can extend this time period of two months to a maximum of six
months from the date of the expiry of the initial order, if it finds it imperative for prevention
of certain situations causing disturbances of safety, health or peace. Although, the power
conferred upon the state government is executive in nature, there can be a revision of the
order by a Magistrate in case the court finds the arbitrary or unfair exercise of power.
Conclusion
Section 144, albeit discretionary, is an essential element in the set of measures that are
undertaken by the executive body of any district in order to prevent as well as manage
situations of urgency.

There have been numerous cases filed against the section challenging the constitutional
validity of the section and an equal number of decisions upholding its legitimacy. Though,
discretionary powers are conferred upon the Magistrate under this section, there are various
fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. The fact
that the High Court can review the order of a Magistrate under this section makes the
exercise of this power more rational.

Moreover, the increasing cases of riots and other incidents ruining public peace and
tranquility has made it mandatory for the Magistrates to have such powers so as to secure
the common people the safety and peace which is essential for their living.

However, at this juncture, it may be opined that there appears to be a need to balance the
granting of plenary powers by the legislature to deal with emergent situations, and the need
to protect the personal liberty and other freedoms granted to the citizens under the
fundamental rights of the Constitution.