Dilpreet
Section 144 of CrPC,1973: Power to issue order in urgent cases of nuisance of apprehended danger
Dilpreet Singh 25 Mar 2020

Section 144 of CrPC,1973: Power to issue order in urgent cases of nuisance of apprehended danger

Purpose of Section 144, CrPC, 1973

Section 144 CrPC empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrateby the State Government to issue an order in urgent cases of nuisance or anticipated danger.

An order may be given to a single individual or to the general public, in a specific place or location, to refrain them from any act or in respect of certain property in his possession or under his management.

The order can be passed only if the Magistrate believes that there is an appropriate ground for proceeding under this section and that immediate restriction or timely guidance is likely to prevent the following:

·        Obstruction, discomfort or harm to any lawfully working person

·        Risk to human life, health and wellbeing

·        Disturbance of the peace of the country, or protests.

Section 144 of the CrPC is one of the processes by which the State can ensure public peace. This part of it deals with the preservation of public order and peace of mind. The structure of the law indicates that this power can only be exercised in immediate cases of disturbance or potential danger.

The Section 144 of the Cr PC. allows the State to take proactive action to resolve potential threats to public security. It allows the Magistrate to issue a mandatory order requiring certain acts to be performed, or a prohibitory order which prohibits people from doing certain acts. However, it also provides various protections to ensure that the power is not abused, i.e. reviewing before exercising power and setting out the relevant details for the exercise of that power.

Section 144 CrPC can be used even when the danger is apprehended

One of the points put forward on behalf of the petitioners was that these orders under Section 144 CrPC passed in anticipation or fear could not be upheld in the eyes of the law. The Bench denied that in Babulal Parate v. State of Maharashtra, AIR 1961 S.C. 884, it was held that the powers of Section 144 are not only exercisable when there is a risk, but also where there is apprehension of risk. The Supreme Court, however, justified it by specifying that the danger must be in the form of an emergency and in order to avoid obstruction and inconvenience or injury to any person lawfully employed.

 

Power must be used responsibly

Such an order may be passed either against a single individual or against the general public, and the orders passed under Section 144 of the CrPC have serious implications on the fundamental rights of the general public. The most burdensome obligation on the Empowered Officer by the legislature is that the interpretation of a danger to public peace and tranquillity should be actual and not imaginary.

The bench in Babulal Parate v. State of Maharashtra (Supra) held:

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”.

 

Repetitive orders under Section 144 of CrPC may amount to abuse of power

In the Kashmir Lock Down case, the Supreme Court noted that the power under Section 144 could not be used as a device to prohibit the legitimate expression of opinion, grievance or exercise of any democratic rights.

The Supreme Court held that Section 144 CrPC provisions would only be applicable in an emergency situation and for the purpose of preventing obstruction and irritation or injury to any lawfully employed person.

The Bench comprising Justice N. V. Ramana, Justice R. Subhash Reddy & Justice B. R. Gavai, while outlining the principles of exercising power laid down in Section 144 CrPC in entitled Ms. Anuradha Bhasin Vs Union of India &Ors, Writ Petition (Civil) 1031/2019 held as follows:

·        Power under Section 144, CrPC, which is both remedial and preventive, can be exercised not only where there is present risk, but also where there is apprehension of risk. Nevertheless, the danger envisaged should be in the form of an emergency and in order to avoid interference and inconvenience or damage to any person lawfully employed.

·        Power referred in Section 144, CrPC can’t be used to censor the free expression of opinion, grievance or exercise of any democratic rights.

·        The order passed under Section 144 of the CrPC will set out the material facts in order to enable judicial review. Power should be exercised in a bona fide and logical manner, and the same should be achieved by relying on the material facts. Hence, allowing judicial review for the above order.

·        When exercising powers under Section 144 of the CrPC, Magistrate is obligated to balance rights and restrictions on the basis of the principles of responsiveness and to apply the least intrusive measures.

·        Repeated orders under Section 144 CrPC This would be an abuse of power.

Constitutional Validity

Justice Hidayutallah claimed in the well-known case of Madhu Limaye v. S.D.M. Monghyr,1971 AIR 2486, 1971 SCR (2) 711 that Section 144 of the Criminal Procedure Code is not unconstitutional if it is correctly enforced and that there is no excuse to be violated. And the provisions of the Code, properly interpreted, do not surpass the limits laid down in the Constitution of India, and this is precisely why the Court held that Section 144 was held valid and constitutional.

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V.Manjunatha Advocate ( VM )   26 Mar 2020 8:46pm
very useful
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