Section 144 CrPC

Section 144 CrPC

Section 144 of CrPC talks about the power to issue order in urgent cases of nuisance or apprehended danger. This section bestows a lot of power upon the magistrate and hence it is essential to check if sufficient safeguards exist in sec144 including the presence of judicial review challenging any abuse of power under the same. We’ll explore the safeguards provided herein by understanding the language of Sec 144 CrPC and also through the judgments set in various cases.

Sec144 while starting off with the line- “in the opinion of magistrate” is immediately followed by the wordings “sufficient ground” which weigh in on the magistrates’ duty and make it his responsibility to have a careful inquiry in order to see if the particular situation needs an immediate/speedy remedy and only then proceed ahead by giving a written order stating the material facts of the case, emphasis being here on the order being written which ensures it from turning into a blanket order. It is also a useful tool in holding the magistrate liable in case things take an undesirable turn. Through the written order the magistrate can direct any person to abstain from certain act or to take certain order if 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 public tranquility, or a riot or an affray. Hence we can say that section 144 is construed in a way as to forbid the magistrate from functioning arbitrarily and hence prevent him from abusing the power.

Looking into Sub section ( iv ) of 114, it talks about steps taken to ensure that the order is set for a limited period i.e. the order cannot be enforceable for more than 2 months by the magistrate plus an additional of 6 months if need be by the state government. Sub section (v) and (vi) of 114 CrPC provide for the Magistrate / State government to on his/their own or on the application of any aggrieved person to rescind or alter the order made by it under (iv) either by himself or magistrate subordinate to him or by his predecessor in the office. If the application is made under (v) or (vi), then an early opportunity of appearing before magistrate is to be provided either in person or  by pleader showing cause against the order. If the magistrate rejects the application wholly or in part the reasons of doing so are to be recorded in writing which accounts him in acting judicially.

Babulal Parate v. state of Maharashtra [1]was the first case to test the constitutional validity of 144 and herein the Supreme Court upheld the provision due to the various safeguards inbuilt under 144. It stated that power was not arbitrarily given to the magistrate but instead the opinion of the magistrate is to be preceded by an inquiry. The powers conferred under this section may be wide but are to be exercised only in an emergency, for maintaining public peace. Even though the orders can be passed upon an entire area but affected persons can always apply to magistrate under 144(4) and seek modification/ exemption. It is also necessary for the judicial proceeding to provide a reason in writing in case they say no to the aggrieved person. The order of magistrate under 144 is subject to challenge before High Court. The High Court holds revisionary powers and can quash an order deeming unfit. This challenging of the validity of an order can even occur at a stage where the prosecution is launched for non-compliance

Further, in Madhu Limaye v. Sub divisional Magistrate , [2]the law laid down in Babulal Parate was reconsidered and constitutional validity was affirmed by reiterating the safeguards. The judgment highlighted that the power can be exercised absolutely and even ex-parte but only in sudden emergencies or the consequences of which could be sufficiently grave. It is to be exercise in a judicial manner which can withstand judicial scrutiny. One of the standards this judgment sets is that annoyance must assume sufficiently grave proportions to bring the matter within the interests of public order.

 Gulam Abbas v. State of UP [3]the Supreme Court held that an order passed under sec 144 CrPC is an executive order which can be questioned in exercise of writ jurisdiction under article   226 of the constitution. It also further reiterated the circumstances under which 144 is to be used i.e. only in extreme extraordinary circumstances, when other measures are bound to fail. It also emphasized upon the certitude that a total prohibition or suspension of people’s rights can be resorted to only as a last measure.

Mohmd Gulam Abbas v. Mohd Ibrahim [4]expanded on the circumstances in which power under 144 can be exercised. It articulated that if public peace and tranquility or other objects mentioned are not in danger then magistrate cannot act under Sec 144 CrPC. The magistrate can only direct the parties to go to the proper forum.

Under the Anuradha Bhasin [5]case wherein a blanket  order in order to prevent opposition parties from contesting or participating in elections was passed the Supreme Court  held that power under 144 cannot be used as a tool to prevent the legitimate expression of opinion or grievance or exercise of any democratic right. Unless there is sufficient material to show that there is likely to be an incitement to violence or threat to public safety or danger only then it is to be exercised.

The Ramlila Maidan Incident case [6]also emphasized upon how there is a need to first assess the perceived threat and only then impose the least invasive restriction possible. The restriction is never to be excessive in nature or time. Proper balance and proportionality between right and restriction on one hand versus right and duty on the other is to be maintained. It also reiterated the principle of revisable order and it being subject to judicial review.

Therefore, we can conclude through the precedents set by the judgments in the various cases above and through the language of the section that Sec 144 CrPC has safeguards within itself that help prevent any abuse of power and that is not just an ordinary power flowing from administration, it is also a judicial power which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in its extent of power.