Under the Criminal Procedure Code (hereinafter the Code) wide powers have

been conferred on an Executive Magistrate to deal 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
cognisance 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.

The paper begins its analysis by first expounding on the scope of section 144,
followed by the explanations regarding the conditions that need be fulfilled in
order to invoke it. Further in the paper, details of an order under this section are
elaborated upon, like its contents, duration and mode of its service. While
explaining the above, judicial pronouncements have been relied upon to
substantiate as well as elucidate the meaning of the section.

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 and Ors 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 tranquillity 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 tranquillity
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 exparte 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 coextensive 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
After careful analysis of the concerned section in the light of judicial
pronouncement and academic commentaries, the paper can be concluded with
the assertion that, 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,
especially Article 21