POWER TO INVOKE SEC-144 OF CrPC
As the number of COVID cases increases considerably in Maharashtra, the government had decided to impose section 144 of Cr.P.C in all urban areas. Even in several districts of national capital Delhi section 144 of Cr.P.C was imposed. Also in several districts of the Indian state section-144 of Cr.P.C is imposed to curb the situation. Let us discuss what is section 144 of Cr.P.C and the powers to invoke this section.
Section 144 of the Criminal Procedure Code of 1973 authorizes the executive Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. According to the law, every member of such an “unlawful assembly” can be booked for engaging in rioting. Unlawful assembly is a legal term to describe a group of people with the mutual intent of deliberate disturbance, it is termed a rout; if the disturbance is commenced, it is termed a riot. Section 144 is imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property. Section 144 of CrPC generally prohibits public gathering. Section 144 has been used in the past to impose restrictions as a means to prevent protests that can lead to unrest or riots. The orders to impose section 144 have been conferred to Executive Magistrate when there is an emergency. Section 144 also restricts carrying any sort of weapon in that area where it has been imposed and people can be detained for violating it. The maximum punishment for such an act is three years. According to the order under this section, there shall be no movement of public and all educational institutions shall also remain closed and there will be a complete bar on holding any kind of public meetings or rallies during the period of operation of this order. Moreover, obstructing law enforcement agencies from dispersing an unlawful assembly is a punishable offense. Section 144 also empowers the authorities to block internet access.
Duration of section 144 order
No order under section 144 shall remain in force for more than two months but the state government can extend the validity for two months and maximum up to six months. It can be withdrawn at any point of time if the situation becomes normal.
What Power does the administration have under the provision?
The magistrate can direct any person to abstain from a certain act or to take a certain act or to make a certain order concerning the certain property in his possession or under his management. This usually includes the restriction on movement, carrying arms, and assembling unlawfully. It is generally believed that the assembly of three or more people is prohibited under section 144. However, it can be used to restrict even a single individual. Such an order is passed when the magistrate considers that it is likely to prevent, or tends to prevent, obstruction annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.
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, can be used even against the newspaper in cases of incitements to breaches of the peace or to commit nuisance, 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 riots or breach of the peace. Mere defamatory statements, and even highly objectionable abusive articles prominent officials, cannot be dealt with under this section unless they likely to lead to a breach of the peace or a nuisance endangering life or health.
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 is not prevented they will develop into an offense. But there is at least one item about which this limited view is not possible. Whenever 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 is not such as would amount to an offense when allowed to be completed would furnish grounds for a civil action only.
3.Disturbance of public tranquility: the act prohibited under this section must be so prohibited if it is likely to prevent obstruction, 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. Where there is no circumstance 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.
- 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 Madhu v S.D.M. money, 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 its being struck down. And the provision of the code properly understood is not more than the limits laid down in the constitution for restricting the freedom guaranteed in it and that is precisely why the court held 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 because of the wide amplitude of the power which section 144 confers on certain magistrates, it places an unreasonable restriction 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, a magistrate gave a prohibitive order under section 144 to avoid a scuffle between members of two labor unions.
Whenever it appears to Magistrate (the power is conferred on the District Magistrate, sub-divisional Magistrate or any Executive Magistrate specially empowered by the State Government), that
- Immediate prevention of a public nuisance, or
- The speedy remedy of an apprehended danger is desirable, he may issue a written order. The order must set forth the material facts of the case, and be served as a summons. It must either direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management
After careful analysis of section 144 power to invoke this section the article can be concluded with the assertion that, section 144 is an essential element in the set of measures that are undertaken by the executive body of any district to prevent as well as manage situation of urgency.
There have been numerous cases filed again the section challenging the constitutional validity of the section and an equal number of a decision upholding its legitimacy. Though discretionary powers are conferred upon magistrate under this section, there are various fetters on its exercise to prevent any arbitration 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 the power more rational.
Moreover, the increasing cases of riots and other incidents ruining public peace and tranquility have made it mandatory to have such powers to secure the common people the safety and peace which is essential for their living.