ANALYSING SECTION 144 CRPC : IS IT INADEQUATE TO CONFRONT URGENT CASES OF NUISANCE OR APPREHENDED DANGER
Under the code of criminal procedure (hereinafter the code), broad powers have been conferred on an executive magistrate to deal with emerging situations. One such provision relates to the powers of magistrates to impose restrictions on the personal freedoms of individuals, whether in a specific location or in a city itself, where the situation has the potential to cause unrest or danger to peace and tranquility in that area, due to some disputes. In short, section 144 confers the power to issue an absolute order at once in urgent cases of arrested nuisance or danger. Specific classes of magistrates may issue such orders when, in their opinion, there are sufficient grounds to proceed under the section and immediate prevention or quick remedy is desirable. It requires the magistrate to issue the order in writing setting out the substantive facts of the case and the order must be notified in the manner prescribed by the section. 134 of the criminal procedure code. The text of the section envisages a situation in which the power provided therein can be exercised upon evaluation by the Magistrate himself - a subjective satisfaction. However, the judicial ruling as dealt with in the document rightly shows that some strict conditions have been imposed by the courts on this more plenary power. Thus, as the case law under discussion would indicate, not only would the Court consider situations as assessed by the Magistrate, but it would also consider factors as to whether orders issued under section 144 were vague or directed at a specific person. Therefore, in many cases, orders issued under the provision may be canceled not precisely on the basis that such orders were not justified by the circumstances, but also due to the fact that the orders thus issued did not specifically mention the area on which the restriction are imposed and so on. The courts have therefore placed a lot of emphasis on the importance of following the guidelines mentioned in section 134 as well as in the various subsections of section 144.
SCOPE OF SECTION 144 OF THE CRIMINAL PROCEDURE CODE
The action in this section is anticipatory, meaning it is used to limit certain actions even before they actually occur. Anticipatory restrictions are generally imposed in emergencies where there is a danger of some event that has the potential to cause serious disturbance or damage to public peace. The essence of action under S.144 is the urgency of the situation; its effectiveness is the probability of being able to prevent some harmful events. The preservation of public peace and tranquility is the primary function of the Government and the aforementioned power is conferred on the Executive Magistracy which allows it to perform this function effectively in emerging situations.In the case of Radhe Das v Jairam Mahtla the dispute involved a piece of property. The petitioners requested the restriction on the defendant from entering the property, which was ordered by the magistrate under section 144. However, while the judicial proceedings were pending, the defendants also requested the same prohibition from the applicants, which was subsequently granted by the Magistrate under the same section. Defendants in response to this order filed this action on the grounds that their property right was infringed by the order. The court found that if the situation requires action, then for the prevention of public peace and tranquility, a person's individual rights can be waived for the greater benefit of society at large. In the words of: "To give jurisdiction under this section, the Magistrate must be of the opinion that immediate prevention or a quick remedy is desirable and that the direction he proposes to take can prevent a disturbance of public peace or riot or brawl. private rights must surrender ".The principles that must be kept in mind before applying this section were also elaborated in the case of Manzur Hasan v. Muhammad Zaman and approved in the case of Shaik Piru Bux v. Kalandi Pati.
1. The urgency of the situation and power must be used to maintain public peace and tranquility
2. Private rights can be temporarily overridden in the event of a conflict between public interest and private rights
3. Issues relating to ownership or rights to civil rights or disputes are not open for adjudication in a proceeding under section 144.
4. When such matters have already been decided by civil courts or judicial rulings, the Magistrate should exercise their power under section 144 in aid of those rights and against those who interfere with their lawful exercise.
5. The consideration should not be that the restriction would only affect a minor part of the community rather than a large, noisier and more militant section.
REASONS FOR APPLYING SECTION 144
Orders in this section are justifiable only when they are likely to prevent any of the following from occurring.
1. Discomfort: Discomfort can be physical or mental. In the case of physical discomfort, a certain degree of closeness is required between the annoyed object and the discomfort, but in the case of mental discomfort, no proximity problem arises. This section covers both types of nuisance. Article 144 of the Code of Criminal Procedure can also be used against newspapers in appropriate cases of inciting violations of the peace or to commit harassment, dangerous to life or health or to annoy legally employed officials. Even when an order under this section concerns a "nuisance", there must be a danger to life or health, or a fight, a riot or a breach of the peace. Mere defamatory statements and even highly questionable offensive articles against prominent officials cannot be covered in this section unless they are likely to lead to a breach of the peace or a life-threatening or health-threatening disorder. The section should not be abused by using it to deal with offensive articles and defamations that cannot lead to a breach of the 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 peace: The act prohibited in this section must thus be prohibited if it is likely to prevent obstructions, etc., or disturbance of public peace, etc. It is not enough to say that by extending several possibilities one after the other, it is possible to establish a cause and effect link between the prohibited act and the disturbance of public peace. 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 either of general impression, the absence of any close or reasonable connection between the prohibited act and the alleged danger to public peace will be a ground on which the High Court is held. to act.
4. An order cannot be issued to give an advantage to a party: the section confers wide powers to the Magistrate, and an imminent danger to public peace can justify interference even with private interests. But the section must not be invoked by one party in a dispute to secure a material advantage over the other
CONSTITUTIONAL VALIDITY OF THIS SECTION
Hidayutallah, C. J., stated in the famous case of Madhu Likaye v S.D.M. Monghyr, that section 144 of the Code of Criminal Procedure is not unconstitutional when applied correctly and the fact that it can be abused is no reason to be crushed. And the provisions of the Code correctly understood do not exceed the limits established by the Constitution to limit the freedom guaranteed in it and it is precisely for this reason that the Court has considered section 144 of the Code of Criminal Procedure to be valid and constitutional.
Since the correctness of the order can be challenged, it cannot be said that, due to the wide scope of the power that art. 144 confers on certain magistrates, places unreasonable limitations on certain fundamental rights. The granting of such wide powers to the Magistrate does not therefore constitute a violation of the rights guaranteed by the Constitution. In this case, the Magistrate gave a prohibitive order under section 144 in order to avoid a scuffle between members of two unions. The petitioner contested the provision as it confers arbitrary powers on the magistrate. For defining the not-so arbitrary power the court stated that since this power can only be exercised in emergency cases, therefore in a sense it limits that act of the Magistrate. Just because there is a possibility of abuse does not mean that the section should be deleted
CONDITION PRECEDENT TO ASSUMING JURISDICTION
The first thing a magistrate must be satisfied with is that there is sufficient reason to proceed in this section and immediate prevention or a quick remedy is desirable, and the second element that must be established is that the magistrate should consider that the management who is going to give, is that which can prevent or tends to prevent obstacles, annoyances or injuries to any person legally employed, or danger to human life, health or safety of a disturbance of public peace or of a riot or a fight. Circumstances that require an order must be emergency circumstances and an approved order when there is no emergency is without jurisdiction. The Magistrate must actually decide whether the dispute is likely to lead to a violation of the peace or a disturbance of the public peace.The urgency of an arrested nuisance or distress case is essential to its handling under section 144 of the Code, and orders to be placed under this section must be of a temporary nature, as clearly shown by subsection (4) of the section 144 providing that no provision referred to in this article shall remain in force for more than two months from its enactment; unless, in the event of danger to human life, health or safety, or risk of riot or brawl, the State Government provides otherwise by notification in the Official Gazette. Where this essential preliminary to the assumption of jurisdiction is not found to exist, your order must be considered an order devoid of legal value and any expression of opinion contained therein must be regarded as having no legal value or effect. This section must be applied in cases of urgency and should not be allowed to any other provision of law that may be more appropriate. And before proceeding to this section, the magistrate should initiate an investigation and record the urgency of the matter. For the purposes of section 144, it is only necessary for the magistrate issuing the order to believe that there is a fear of nuisance or danger. No evidence of such apprehension is needed. The Magistrate's report should disclose the existence of an emergency that required an ex parte order under this section or that there was not enough time to notify the relevant party of the notice.
CONCLUSION After a careful analysis of the section concerned in the light of the judicial ruling and the academic comments, the contribution can conclude with the affirmation that, although discretionary, Article 144 constitutes an essential element in the set of measures that are undertaken by the executive body of any district in order to prevent and manage emergency situations. Numerous lawsuits have been brought against the section contesting the constitutional validity of the section and an equal number of decisions supporting its legitimacy. Although discretionary powers are vested in the Magistrate in this section, there are various constraints on its exercise in order to prevent any arbitrariness or injustice in the order. The fact that the High Court can review a Magistrate's order under this section makes the exercise of this power more rational. Furthermore, the growing cases of riots and other incidents that ruin public peace and tranquility have made it mandatory for magistrates to have such powers in order to guarantee the common people the security and peace that is essential to their lives. However, at this juncture, it can be said that there seems to be a need to balance the granting of plenary powers by the legislator to deal with emerging situations, and the need to protect personal liberty and other freedoms granted to citizens under the fundamental rights of the Constitution, in particular Article 21.
NAME – APURVA KRITI
COLLEGE – KIIT SCHOOL OF LAW BHUBANESWAR