Section 144 of Criminal Procedure Code, 1973 gives power to a District Magistrate, a Sub - Divisional Magistrate or any other Executive Magistrate on behalf of the State Government to issue an order to an individual or the general public in a particular place or area to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management.

As per the Section 144 Cr. P. C, the order can be passed only if such Magistrate considers, that the direction is likely to prevent:

obstruction, annoyance or injury to any person lawfully employed danger to human life, health or safety disturbance of the public tranquillity, or a riot or affray.
This order can be passed against a particular individual or general public. The order can be passed even ex-parte.

So, can this power be exercised by the Executive Officer on a mere subjective satisfaction regarding likelihood of danger?
Before getting to the answer of that question, it needs to be kept in mind that the orders under this provision will lead to the infringement of fundamental rights to freedom of speech and expression, assembly and movement guaranteed under Articles 19 (1)(a), (b) and (c) of the Constitution of India. Hence, the orders under Section 144 have to meet the test of reasonable restrictions as per Article 19 of Constitution of India.

Object and Legislative Intent
Section 144 appears in Chapter X dealing with Maintenance of Public Order and Tranquillity and is a part of Sub - Chapter C. The Sub - Chapter is titled Urgent Cases of Nuisance or Apprehended Danger and the Section deals with the power to issue orders in urgent cases of nuisance or apprehended danger. The order can be passed in terms of sub section (1) by a District Magistrate or any other Executive Magistrate especially empowered by the State Government in this behalf.

The order can be passed when immediate prevention or speedy remedy is desirable. The legislative intention to preserve public peace and tranquillity without lapse of time acting emergently, if warranted, giving thereby paramount importance to societal needs by even overriding temporarily private rights keeping in view public interest, is patently in-built in Section 144 of Code of Criminal Procedure, 1973.

Some of the objects for securing which an order under Section 144 of Code of Criminal Procedure, 1973 can be passed are, to prevent obstruction, annoyance, injury etc. No doubt, the prevention of such activities would be in the public interest but it would be no less in the interest of maintenance of public order within the meaning of Articles 19 (2) and (3) of Constitution of India.

Section 144 of Code of Criminal Procedure, 1973 is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquillity or a riot or affray.

These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression law and order is a comprehensive expression which may include not merely public order but also matters such as public peace, public tranquillity and orderliness in a locality or a local area and perhaps some other matters of public concern too. Public order is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder.

This concept came to be illustratively explained in the Judgment of Honble Supreme Court of India in Dr. Ram Manohar Lohia Vs State of Bihar & Ors., AIR 1966 SC 740; 1966 SCR (1) 709, wherein, it was held that when two drunkards quarrel and fight, there is disorder but not public disorder. They can be dealt with under the powers to maintain law and order but cannot be detained on the ground that they were disturbing public order.

However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of law and order but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to public order. Section 144 Cr. P. C empowers passing of such order in the interest of public order equitable to public safety and tranquillity. The provisions of Section 144 Cr. P. C empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquillity is not ultra vires the Constitution of India.

The scope of Section 144 Cr. P. C enumerates the principles and declares the situations where exercise of rights recognized by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tranquillity and/or harmony. The orders passed under Section 144 Cr. P. C are attempted to serve larger public interest and purpose. As noticed under the provisions of Section 144 Cr. P. C complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 Cr. P. C.

If one reads the provisions of Section 144 Cr. P. C along with other constitutional provisions and the judicial pronouncements of Supreme Court of India, it can be undisputedly be stated that Section 144 Cr. P. C is a power to be exercised by the specified authority to prevent disturbance of public order, tranquillity and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too.

The duty to maintain law and order lies on the concerned authority and, thus, there is nothing unreasonable in making it the initial judge of emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full co-operation in maintaining public order and tranquillity.

The language of Section 144 Cr. P. C does not contemplate grant of any time for implementation of the directions relating to the prevention or prohibition of certain acts for which the order is passed against the person (s). It is settled Rule of Law that wherever provision of a statute does not provide for a specific time, the same has to be done within a reasonable time. Again reasonable time cannot have a fixed connotation.

It must depend upon the facts and circumstances of a given case. There may also be cases where the order passed by an Executive Magistrate under Section 144 Cr. P. C requires to be executed forthwith, as delay in its execution may frustrate the very purpose of such an order and may cause disastrous results like rioting, disturbance of public order and public tranquillity, while there may be other cases where it is possible, on the principles of common prudence, that some time could be granted for enforcement and complete implementation of the order passed by the Executive Magistrate under Section 144 Cr. P. C.

If one reads the entire provision of Section 144 Cr. P. C, then the legislature itself has drawn a distinction between cases of urgency, where, the circumstances do not admit to serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving a notice to the effected party. It is left to the discretion of the executive authority, vested with such powers to examine each case on its own merits.

Sources or basis of material for exercise of power under Section 144 Cr. P. C

Text of Section 144 (1) of Code of Criminal Procedure, 1973 would show that mere opinion of the Magistrate as to the existence of sufficient ground for proceeding would be enough or issuance of order contemplated under the section.

However, the powers under Section 144 (1) Cr. P. C should not be exercised merely on some press report or media reports as held in Parveen Bhai Thogandia Vs State of Karnataka, 2003 Cr. L. J 4502.

Before a Magistrate can pass an order under Section 144 Cr. P. C, he himself has to form an opinion that there is sufficient ground for proceeding under that section and for immediate prevention of speedy remedy is desirable, See [Babulal Parate Vs State of Maharashtra, AIR 1961 SC 884].

Law laid down by Supreme Court
To ascertain whether a restriction on liberties guaranteed under Article 19 of Constitution of India is reasonable or not, the Supreme Court has developed the test of proportionality. In the Constitution Bench decision in Modern Dental College & Research Centre & Ors. Vs State of Madhya Pardesh & Ors., (2016) 7 SCC 353, the Supreme Court held that a law imposing restrictions will be treated as proportional if:

• It is meant to achieve a proper purpose, and
• if the measures taken to achieve such a purpose are rationally connected to the purpose, and
• if such measures are necessary.

In Justice K.S. Puttaswamy Vs Union of India, AIR 2017 SC 4161, the Supreme Court laid down a four-fold test to determine proportionality:

1. A measure restricting a right must have a legitimate goal (legitimate goal stage).
2. It must be a suitable means of furthering this goal (legitimate goal stage).
3. There must not be any less restrictive but equally effective alternative (necessity stage).
4. The measure must not have a disproportionate impact on the right holder (balancing stage).

So, the legality of the orders passed under Section 144 Cr. P. C will be tested on the basis of these principles of reasonableness and proportionality.

Senior Advocate Menaka Guruswamy observed in her research on Freedom to Assemble and Freedom of Association that contradictory approach of Article 19 (1) (b) and (c) of the Constitution of India and Section 144 of Cr. P. C is a reflection of a colonial legacy and the unquestioning adoption of most of the provisions of the 1872 Code of Criminal Procedure by the contemporary Indian State.

Mere likelihood of danger not a ground to invoke Sec. 144 of Criminal Procedure Code, 1873. As held by the Supreme Court, mere apprehension of danger is not a sufficient ground to curb citizens rights by invoking Section 144 Cr. P. C.

There should be genuine apprehension of imminent danger and not mere likelihood or tendency.

In Babulal Parate Vs State of Maharashtra, 1961 AIR 884, the SC held that the power can be used even in anticipation of danger. But it should be based on sufficient materials which show that immediate prevention of certain acts is necessary to preserve public safety.

The test laid down in the Section is not mere `likelihood or `tendency. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the Section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger.

In Madhu Limaye Vs SDM, AIR 1971 SC 2486, the Supreme Court upheld the Constitutionality of Section 144 Cr. P. C on the reasoning that it constituted a reasonable restriction in the interest of public order. However, the Court added that this power should be exercised only in emergent and urgent situations.

The gist of action under Section 144 Cr. P. C is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. 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.

The Court further observed in the Judgment that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order (under Sec 144 Cr. P. C).

The Supreme Court while restating the law governing Articles 19 (1)(a) and 19 (1)(b) of the Constitution of India and the parallel restrictions contemplated under Articles 19 (2) and 19 (3) respectively and also gauging the dimensions of legal provisions in relation to the exercise of jurisdiction by the Empowered Authority in passing an order under Section 144 of the Code of Criminal Procedure, 1973 in In Re Ramlila Incident Vs. Home Secretary, Union of India & Ors., 2012 (1) Crimes 241 (SC), said :

In case of a mere apprehension, without any material facts to indicate that the apprehension is imminent and genuine, it may not be proper for the authorities to place such a restriction upon the rights of the citizen.

As explained in In Re Ramlila Incident Vs. Home Secretary, Union of India & Ors., 2012 (1) Crimes 241 (SC), the necessary prerequisites of the order under Section 144 Cr. P. C are:

1. It is an executive power vested in the officer so empowered;
2. There must exist sufficient ground for proceeding;
3. Immediate prevention or speedy remedy is desirable; and
4. An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.

In this case, the Court held that restriction imposed on the right to freedom of speech and expression was unsupported by cogent reasons and material. The Court held the police action on protesters to be illegal, after observing:

The police have failed to establish that a situation had arisen where there was imminent need to intervene, having regard to the sensitivity and perniciously perilous consequences that could have resulted, if such harsh measures had not been taken forthwith.

The Court ordered disciplinary action against erring police officials, and compensation to those who had suffered due to the police acts.

So, the above decisions, when read along with the doctrine of proportionality, lead to the conclusion that an order under Section 144 Cr. P. C can be imposed only if there are materials to show: (a) that threat is immediate and (b) that restrictions are necessary to prevent the immediate threat.

Further, the restrictions must be absolutely necessary, and should be as less invasive as possible, proportionate to the danger. It means that if there are less restrictive means to avoid the danger, they should be adopted.

This also means that sweeping orders of prohibition, passed only with the intention of suppressing public protests, are not legally sustainable.

The Supreme Court has also held in the cases of Shayara Bano Vs. Union of India, (2017) 9 SCC 1 that a State action which is done irrationally, or without adequate determining principle is manifestly arbitrary and also that the State can only impose restrictions on the freedom of speech and expression if it indicates a close link between speech and public order and the liability is on the State to discharge burden of proof along with evidence.

Another important precept of exercise of power in terms of Section 144 Cr. P. C. is that the right to hold meetings in public places is subject to control of the appropriate authority regarding the time and place of the meeting. Orders, temporary in nature, can be passed to prohibit the meeting or to prevent an imminent breach of peace. Such orders constitute reasonable restriction upon the freedom of speech and expression. This view has been followed consistently by this Court.

To put it with greater clarity, it can be stated that the content is not the only concern of the controlling authority but the time and place of the meeting is also well within its jurisdiction. If the authority anticipates an imminent threat to public order or public tranquillity, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of an individual. However, it must be borne in mind that the provisions of Section Cr. P. C. are attracted only in emergent situations.

The emergent power is to be exercised for the purposes of maintaining public order. It was stated by this Court in Romesh Thapar Vs State of Madras [1950 SCR 594] that the Constitution requires a line to be drawn in the field of public order and tranquillity, marking off, may be roughly, the boundary between those serious and aggravated forms of public disorder which are calculated to endanger the security of the State and the relatively minor breaches of peace of a purely local significance, treating for this purpose differences in degree as if they were different in kind.

The significance of factors such as security of State and maintenance of public order is demonstrated by the mere fact that the framers of the Constitution provided these as distinct topics of legislation in Entry III of the Concurrent List of Seventh Schedule to the Constitution of India.

The gist of action under Section 144 Cr. P. C is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. 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 have no justification.

Written By: Dinesh Singh Chauhan, Advocate, High Court of Judicature, Jammu.
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