This Article is written by Ayush Garg, 2nd Year Student at Gujarat National Law University, Gandhinagar.
1. Introduction
Section 144 of Cr.P.C. was enacted in the year 1973. It is enforced in a given area in situations of emergency or nuisance or perceived danger of an incident that is potentially dangerous or destructive to human lives or properties. We may say in other words that public meeting is forbidden.
Section 144 of the Cr.P.C. also prohibits the use or transport of any firearm in the competence where imposed. In the event of any violation, individuals may be arrested in any manner. Such an act may impose three years of punishment.
Under this clause, no public activity can occur in compliance with the orders. All schools in the city are also closed. During the period during which section 144 in that area is imposed, any public meeting or rallies in the area shall be prohibited.
2. What is section 144 Cr.P.C.
According to me section 144 of Cr.P.C. states that: –
“1. If there is appropriate ground for the proceedings under that section and an immediate preventive or speedy remedy in the opinion of a district judge, a divisional officer or any other executive magistrate explicitly authorised by the state government in this form, such magistrate can by writing stating the substantive facts of the case served in the way given by the written order such magistrate, if such Magistrate considers that this direction may or may tend to prevent, obstruct, molester or injury to a person legally employed or to endanger human life, safety or health or disturb public peace of mind or an affray, the Magistrate shall be liable to do so.
2. In cases of emergency or in cases in which the circumstances do not require the service in due time, an order under this section may be ex parte passed to the person to whom the order is directed.
3. An order under this section may be addressed to a specific individual or persons’ resident in a particular location or region, or the general public while visiting or visiting a specific location or area.
4. No order under this section shall remain in vigour for more than two months after the making of it: provided that, in order to prevent danger to human life, health or safety, or to prevent riot or any affray, the State Governments considers it to be appropriate, they may, in writing, by notification, direct that the order given by a magistrate under this section shall not continue in force for a further period of time.
5. Whether on his own motion or at the request of any person offended, any Magistrate may, by itself or any Magistrate subordinate to that person or his former Predecessor, revoke or change any order given in accordance with this section.
6. The Government of the State may either rescind or modify any order it has issued under the conditions provided for in sub-section (4) on its own motion or on the application of any person accused.
7. If the appeal is issued pursuant to subparagraph (5) or subparagraph (6), the Magistrate or the State Government, in that case, shall grant an early opportunity to appear before the Applicant either in person or through a pleader to show cause against the order and shall deny the appeal, wholly or in part, whether the Magistrate or the State Government, as the case may be, shall deny it. D.- Immovable property disputes”
3. What is curfew?
In contrast, Curfew orders are subject to worse deterioration in any location or city. People have a fixed time or span to live in the building. It’s known that managing some kind of violent incident can be very beneficial. At the same time let us remind you that curfew orders can be for a specific party or for the general public.
It constrains any outdoor activity without police prior approval. Establishments such as markets, schools, colleges, etc. are ordered to remain shut and are allowed to run only essential services. Curfew is also an order issued by Magistrate of the District. There is a full traffic restriction at this time. It won’t be incorrect to say that Section 144 is an extended form of curfew. Time element is important for curfew. The authorities can, however, also extend the curfew if necessary.
4. Section 144 and COVID-19
The government of Delhi imposed Section 144 in Delhi on March 23, 2020 to stop the spread of coronavirus, which claimed more than 14,500 lives worldwide and infected more than 3,40,000 people. When the virus spread its wings in India, many states put Section 144 on the Delhi government to prevent local covid-19 transmission.
Section 144 was imposed in the district of North Goa on 12 February, 2020 following intelligence inputs about possible threats of terror along the western coast. North Goa District Magistrate said it would be imposed 60 days, from 11 February, 2020 to 10 April, 2020 in a notification.
5. Difference between section 144 and curfew
Section 144 forbids the assembly of four or more individuals in the area involved, although people are required to remain indoors for a given period of time during the curfew. The Government also imposes a full traffic ban. Under the curfew, markets, schools, universities, and offices remain closed, and only critical services are permitted to operate on prior notice.
6. Important case laws under section 144
a. B.B.N. School v. District Magistrate[1]: – It was held that in the restricted context of public order as interpreted under preventive detention law, the word “public tranquillity” is not employed.
b. Ummul Khan v. Executive Magistrate, Union Territory[2]: – it was held that under this provision, the Executive Magistrate has specific powers. Once the Magistrate found that the situation had disrupted public calmness and threat to human life, an order passed under paragraph 144 became valid.
c. Abdul v. Lucky Narain Mundul[3]: – The object is, in emergencies, to allow an immediate order by a Magistrate to prevent an impending breach of peace, etcetera, but it shall not relieve it of the task of properly investigating the circumstances that make such a breach of peace, etcetera possible. This section is not intended to do so.
d. Prabhas Kumar Roy v. The officer in charge: – An decree in compliance with s.144 banning petitioners from carrying out Goddess Durga’s immersion procession and passing by the Mosque on a specific day was deemed violating the rights of processionalists enshrined in Articles 25 and 26 of the Constitution.
e. A.H. Wheeler v. State of Bihar[4]: – In the proceedings pursuant to section 1443, the magistrate cannot declare expulsion of a party and order the other party to be brought into custody.
f. Ravi Raman Prasad v. State of Bihar[5]: – In this case R is awarded house ownership under appeal by execution in the following proceedings u / s 144 Cr. P.C of the judgment of the Civil Court against the suspected tenant. While the High Court decided to appoint a recipient of the disputed property to an incorrect appreciation, the Supreme Court held in setting an exceptional order to the High Court that in fact the Magistrate had simply upheld the status quo by taking over R, since R had acquired possession in the Civil courts by means of evictions.
g. Kushumkumaree Debee v. Hemalinee: – The petitioner was proclaimed the greatest Pir of Sind and held an annual religious festival, to which many Muslims were objected. In view of the situation, the state’s DM prohibited this ‘festival’ 5 by an order under Section 144. The pir and his followers objected to that order because it restricted their worship rights. This argument was disagreed by the Court.
h. M Das v. D.C. Das[6]: – The Executive Sub-Divisional Magistrate was held competent with the Executive Magistrate’s jurisdiction. The key aim of the law is to avoid peace violations. Any authority having jurisdiction can enforce the same measure when the provision is preventive. In such circumstances, priority of competence cannot be considered. There is no need, therefore, for any intervention to the investigation to be made by the Sub-Division Magistrate and not by the Executive Magistrate.
i. Md. Ghulam Abbas v. D. Ibrahim[7]: – The Supreme Court held that the form of order referred to in paragraph 144(3) is specifically intended to avoid the danger to people’s lives, health and safety or peace of mind. These are just temporary orders not to last for more than 2 months as set out in paragraph 144(6) of the Code.
j. Dr. Anindya Gopal Mitra v. State of West Bengal[8]: – If the police commissioner refused permission to hold a public meeting of the political party, the BJP, and refused to relax the forbidden order, he said that the holding of the meeting could not be totally prohibited, but that necessary restrictions and precautionary measures could be imposed.
k. Maula Bux Ansari v. Ram Ruh Shah: – All orders have been put under the Cr. P.C have a higher meaning than merely naming the accused. Therefore, the proceedings cannot be treated as being purely interlocutory. The period of 60 days shall have to be counted from and not from the date of the final order issued during the start of the proceedings.
7. Ruling of courts on section 144, Cr.P.C.
a. Dr Ram Manohar Lohiya case 1967, the Supreme Court held that “there can be no democracy if a portion of the people allows ‘public order’ to be openly disrupted.”
b. Madhu Limaye vs. Sub-Divisional Magistrate case 1970, a seven-judge bench led by India’s then-Chief Justice M Hidayatullah upheld section 144 of the Constitution.
The court has said “rule can be broken” is no excuse to strike it down.
It further ruled that the restrictions imposed by Section 144 can not be deemed to violate the right to freedom of expression and speech.
The imposition of Section 144 falls under the “fair restrictions” laid down in Article 19(2) of the Constitution.
c. In 2012 the Supreme Court criticized the government for imposing Section 144 in Ramlila Maidan against a sleeping crowd.
The court held that such a clause can be used for the preservation of public peace only in severe circumstances. The emergency has to be sudden and the consequences serious enough.
8. Duration of section 144 Cr.P.C. order
No order shall remain in force under this section for more than two months after it was issued. In order to prevent danger to human life, health, safety or any disorder or an affront, the State government may agree, if required, to extend its validity to a maximum of six months for a further two months, according to the circumstances. It can be removed if the situation is normal.
9. Conclusion
The paper is concluded with the assumption that section 144, while discretionary, is an integral element of any collection of measures undertaken by the executive body of any district, to avoid and control urgent situations following a thorough review of the relevant area in light of the judgment and academic comments.
Numerous cases have been filed against that section which challenge the section’s constitutional validity and an equal number of decisions which uphold its legitimacy. Although the judge is granted discretion under this provision, it is exercised by various fetters in order to prevent arbitrariness and injustice. It makes the exercise of this power more reasonable that the High Court may review the order of a judge in this area.
In addition, the cases of riots and other accidents that destroy public peace and tranquility have made it necessary for the Magistrates to have these powers to protect the protection and stability important to their lives for the common people.