Full Judgment Text
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PETITIONER:
STATE OF BIHAR
Vs.
RESPONDENT:
K. K. MISRA & ORS.
DATE OF JUDGMENT:
29/10/1969
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
SHELAT, J.M.
VAIDYIALINGAM, C.A.
HEGDE, K.S.
RAY, A.N.
CITATION:
1971 AIR 1667 1970 SCR (3) 181
ACT:
Code of Criminal Procedure, 1898 (Act 5 of 1898), ss. 144
(6) Validity-Whether violates sub-cls. (b), (c) and (d) of
cl. (1) of Art. 19 of the Constitution of India 1950.
HEADNOTE:
Sub-section (6) of s. 144 of the Code of Criminal Procedure
provides that no order under s, 144 shall remain in force
for more than two months from the making thereof, unless, in
cases of danger to human life, health or safety, or a
likelihood of a riot or an affray, the State Government, by
notification in the Official Gazette otherwise directs. The
City Magistrate of Jamshedpur passed orders under s. 144(1)
against the respondents which were later extended by the
State Government of Bihar in exercise of its powers under s.
144(6). -In a writ petition filed by the respondents the
High Court of Patna struck down the second part of sub-s.(6)
of s. 144 as being violative of sub-cls. (b), (c) and (d) of
cl. (1) of Art. 19 of the Constitution. The State
appealed and contended that the only operative orders were
those made by the Magistrate and the Government merely
extended those orders. Further, since the order of the
Government got merged in the orders of the Magistrate, the
extended order was open to review under sub-s. (4) of s. 144
and the same was also revisable under s. 435 read with s.
439 of the Code of Criminal Procedure.
HELD : Per Shelat, Vaidialingam, Hedge and Ray, JJ.-(i) The
Magistrate’s order is no doubt the basic order. But after
the process in the first five sub-sections of s. 144 is
completed he becomes functus officio. The decision that the
circumstances mentioned in sub-s. (6) of s. 144 Criminal
Procedure Code continue to exist and the original order
should be continued is that of the Government. It is not a
case of the Government order getting merged in the
Magistrate’s order. Rather the Magistrate’s order is
adopted by the Government as its own order. [194 A-C]
The order of the Government is made in the name of the
Governor ,and signed by a Secretary to the Government. It
is published in the Official Gazette. It is thus clearly an
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executive act of the Government coming within Art. 166 of
the Constitution. If the direction given under s. 144(6) is
intended to merely keep alive a judicial order, the
legislature would have entrusted that function to a judicial
authority as has been done in the case of an order under s.
144(1). [194 E-F]
Section 144(4) says in clearest possible terms that the
Magistrate may rescind or alter any order made under that
section by himself or any magistrate subordinate to him or
by a predecessor in office. It is not possible to bring
within the scope of this section the order made by the State
Government. for if it was so intended it would have been
mentioned in the section. [194 G]
From a plain reading of s. 144(6) it is clear that the power
conferred on the Government is an independent executive
power, not expected to be exercised judicially. It is open
to be exercised arbitrarily. The direc-
182
tions given in the exercise of that power need not be of a
temporary nature. The ambit of that power is very large and
is uncontrolled. [195 B]
(ii) The fact that the Legislature is expected to keep a
check on governmental actions does not absolve this Court’s
responsibility. The fundamental rights constitute a
protective shield to the citizen as against State actions
and the Court cannot desert its duty on the assumption that
the other organs of the State would safeguard the
fundamental right of the citizens. [195 C-D]
(iii) In order to be a reasonable restriction within the
meaning of Art. 19 of the constitution the same must not be
arbitrary or excessive and the procedure and the manner of
its imposition must also be fair and just. Any restriction
which is opposed to the fundamental principles of liberty
and justice cannot be considered reasonable. One of the im-
portant tests to find out whether a restriction is
reasonable is to see whether the aggrieved party has a right
of representation against the restriction imposed or
proposed to be imposed. Further the courts have to see
whether it is in excess of the requirement or imposed in an
arbitrary manner.
Although the object of a restriction may be beyond reproach
and may -very well attract the protection of sub-Arts. 1 to
6 or Art. 19, if the State fails to provide sufficient
safeguards against its misuse the operative -sections will
be rendered invalid. [196 C-F]
Since section 144(6) gives the power to impose the
restrictions contemplated by it to the executive Government
and not to a judicial authority and there is no right of
representation, appeal or revision given to ,the aggrieved
party against an order which may not be of a temporary
nature, it must be held that the said impugned provision is
violative of Art. 19 (1) (b) (c) and (d) and is not saved by
Arts. 19(3) (4) or (5). [196 G]
Babulal Parate v. State of Maharashtra and Ors. [1961] 3
S.C.R. 423, ,referred to.
State of Madras v. V. G. Rao, [1952] S.C.R. 597; Dr. Khare
V. State of Delhi, [1950] S.C.R. 519; State of Madhya
Pradesh v. Baldeo Prasad [1961] 1 S.C.R. 970 and Virendra v.
State of Punjab, [1958] S.C.R. 308, applied.
Per Shah, J. (dissenting). Sub-s. (6) of s. 144 does not
authorise the ,State Government to make the order of the
Magistrate permanent. It ,cannot direct it to continue
after apprehension of danger or emergency ceases. The
validity of a statute conferring power is not open to
challenge on the plea that the power may possibly be abused
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by the authority in which it is vested.
The order duration of which is extended by declaration of
the State is and continues to remain that of the Magistrate.
The ’source of the authority of the order is derived not
from the State Government, but from the Magistrate. It
cannot be said that the order of the Magistrate gets merged
with that of the Government when its duration is extended.
Although no provision is made in the Code for a judicial
review of the State Government’s order under s. 144(6), the
said order does not depend on the subjective satisfaction of
the Government and is capable of being challenged in a
petition under Art. 226 of the Constitution’ Further the
Magistrate who passed the original order may in considera-
tion of the materials placed before him under s. 144(4)
rescind or alter the State Government’s order. In the
exercise of his judicial functions
183
the Magistrate is independent of the Government and not
subordinate to it. The principle applies even in the case of
an Executive Magistrate who under the scheme of separation
of powers may be responsible to the executive authorities.
The above remedies being available the provision in s.
144(6) cannot be held to be unreasonable on the mere ground
that there is no express provision in the Code for redress
against the, State Government’s order. Reasonableness of a
statutory provision cannot ’be determined by the application
of set formulas : it must be determined on a review of the
procedural and substantive provisions of the statute keeping
in mind the nature of the right intended to be infringed,
underlying purpose of the restriction contemplated to be
imposed, gravity of the evil intended to be remedied
thereby, object intended to be achieved by the imposition of
restriction, and other relevant circumstances. [185 D, G 188
B-D]
Case-law referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21 of 1966.
Appeal from the judgment and order dated January 22, 1962 of
the Patna High Court in Misc. Judicial Case No. 757 of
1961.
D. Goburdhun, for the appellant.
M. K. Ramamurthi, for the respondents.
B. Sen and S. P. Nayar, for intervener No. 1.
L. M. Singhvi and S. P. Nayar, for intervener No. 2.
The Judgment of J. M. SHELAT, C. A. VAIDIALINGAM, K. S.
HEGDE and A. N. RAY, JJ. was delivered by HEGDE, J., SHAH,
J. delivered a dissenting Opinion.
Shah, J.-The High Court of Patna has declared the second
part of sub-s. (6) of s. 144 of the Code of Criminal
Procedure ultra vires. Sub-Section (6) reads
"No order under this section shall remain in
force for more than two months from the making
thereof; unless, in cases of danger to human
life, health or safety, or a likelihood of a
riot or an affray, the State Government, by
notification in the Official Gazette,
otherwise directs."
In the view of the High Court, an order made by the State
Government extending the duration of an order under s. 144
imposes an unreasonable restriction on the fundamental
freedom of the citizens, because the order of the State
Government is not subject to judicial scrutiny and the Code
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provides no machinery for applying for an order of
rescission or alteration of -the order.
Section 144 is enacted to provide for making temporary
orders in urgent cases of nuisance or apprehended danger,
where imme-
184
diate prevention or speedy remedy is desirable. It provides
that when a Magistrate competent in that behalf is of the
opinion that there is sufficient ground for proceeding under
the section, and immediate prevention or speedy remedy is
desirable, the Magistrate may make an order in writing
against any person or the public generally when frequenting
or visiting a particular place, if he considers that his
direction is likely to prevent or tends to prevent
obstruction, annoyance or injury, or risk of 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, or an affray. The order
must state the material facts of the case and it must be
served in the manner provided by s. 134 and may direct a
person to abstain from a certain act or to make certain
order with certain property in his possession or under his
management. In cases of emergency or in cases where the
circumstances do not admit of service in due time of a
notice upon the person against whom the order is directed,
it may be passed ex parte. The order remains in force for
not more than two months, unless the State Government, in
cases of danger to human life, health or safety, or a
likelihood of a riot or an affray otherwise directs. The
order may be rescinded or altered by a Magistrate on his own
motion or on the application of any person aggrieved if the
order is passed by himself or by any Magistrate subordinate
to him or by his predecessor in office. In deciding the
application made to him the Magistrate must give an
opportunity of appearing before him either in person or by
pleader and showing cause against the order.’ and if the
Magistrate rejects the application wholly or in part, he
shall record in writing his reasons for so doing.
This Court in Babulal Parate v. State of Maharashtra and
Ors.(1) held that s. 144 is intended to secure the public
weal by preventing disorders, obstructions and annoyances.
The powers conferred by it are exercisable by a Magistrate
who acts judicially and the restraints permitted by it are
of a temporary nature ’and may be imposed only in an
emergency. The Court further held that the restrictions
which the section authorises are not beyond the limits
prescribed by cls. (2) and (3) of Art. 19 of the Con-
stitution, for the prevention of such activities -as are
contemplated by the section is in public interest and
therefore no, less in the interest of public order. The
Court observed that the wide power under the section may be
exercised only in an emergency and for preventing
obstruction, annoyance, or injury etc. as specified therein
and those factors necessarily condition the exercise of the
power and, therefore, the power is not unlimited or
untrammelled, and that the section cannot be struck down
simply on the ground
(1) [1961]3 S.C.R. 423.
185
that the Magistrate might possibly abuse his power.
Challenge to the validity of s. 144 in its entirety was
negatived in Babulal Parate’s case(1). The Court however
did not consider the validity of the power vested in the
State executive to extend the duration of the order beyond
two months, apparently because no argument was advanced at
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the Bar in that behalf.
Power conferred upon a Magistrate to make an order under S.
144(1) is subject to the jurisdiction of the High Court
under ss. 435 & 439 of the Code of Criminal Procedure.
Again an order under sub-s. (4) refusing to rescind or alter
any order under the section, may be rectified by the High
Court. The Magistrate may pass an order in the conditions
prescribed in sub-s. (1) and not otherwise. The order does
not remain in force for a period longer than two months,
unless the State Government, in cases of danger to human
life, health or safety, or a likelihood of a riot or an
-affray, directs otherwise. The power to "otherwise direct"
involves authority to extend the duration of the Magisterial
order for the ,duration of the danger or emergency. Sub-
section (6) however does not authorise the State to make the
order of the Magistrate permanent. The State must in
"otherwise" directing take into consideration, whether it is
a case of danger to human life, health or safety, or of a
likelihood of a riot or an affray in respect of which an
order has been made by the Magistrate, and whether it is
necessary to extend the period beyond two months and then to
direct that the order shall remain in force for a period
longer than two months, but not after apprehension of danger
or emergency ceases.
It was submitted that in the absence on any statutory
restriction on the exercise of the power, the State may
abuse the power and continue it in force either permanently
or for a period longer than the apprehension of danger or
emergency justifies. But the validity of a statute
conferring power is not open to challenge on the plea that
the power may possibly be abused by the authority in which
it is vested.,
The order, duration of which is extended by declaration of
the State,, is and continues to remain the order of the
Magistrate. The source of the authority of the order is
derived not from the State Government, but from the
Magistrate. The direction of the State Government only
extends its duration. The Code, it is true, provides no
machinery for subjecting the direction by the State Gov-
ernment to a judicial scrutiny. The direction under sub-s.
(6) does not depend upon the subjective satisfaction of the
Government. On appropriate grounds the direction may be
challenged in a petition under Art. 226 of the Constitution.
Again sub-s. (4) of s. 144 clearly authorises a Magistrate
either on his own motion or on the application of any person
aggrieved, to rescind
(1) [1961] 3 S.C.R. 423.
6Sup.CI/70-13
186
or alter any order made under the section. The order is
passed by the Magistrate, and, the source of its authority
lies in the exercise of the judicial function of the
Magistrate even after its duration is extended by the State
Government. Therefore under sub-s. (4) notwithstanding that
the State Government has made a direction extending the
duration of the order beyond two months, the Magistrate
would, in my judgment, be competent, on a judicial
consideration of the materials placed before him, to rescind
or alter the order. It was submitted that a Magistrate
exercising power under sub-ss. (1) & (4) of S. 144 of the
Code of Criminal Procedure is an authority subordinate to
the State Government, and he cannot rescind or alter an
order made by the State Government. That argument proceeds
upon a misconception of the true nature of the division of
powers under our Constitution. Since the ultimate liability
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for maintaining law and order lies upon the State, the
Legislature has provided that the order, if it is to remain
in operation for a period exceeding two months, should have
the imprimatur of the State Government. But on that account
the Magistrate does got become an authority subordinate to
the State Government. The State Government is the head of
the executive and exercises no authority over the judicial
functions of the Magistrates. A Magistrate is independent
of the State Government and he is entitled, notwithstanding
the declaration made by the State Government, if the
circumstances justify, to rescind or alter the order.
Under the scheme of division of the executive and judicial
functions, it is true that power to make an order under s.
144 is generally vested in Executive Magistrates who are in
some matters responsible to the executive authorities. But
even under the scheme of separation of judicial- and
executive powers the function of the Magistrates exercising
power under s. 144 remains judicial. To assume in deciding
a constitutional issue, that in the prevailing
administrative set-up, an Executive Magistrate invested with
power under s. 144 of the Code of Criminal Procedure may
not, on extrajudicial considerations, rescind a direction of
the State Government is to overlook the distinction between
abuse of power and noninvolvement of power. If in a given
case, the order is matte on extra-judicial considerations it
is, it is liable to be set aside by recourse to appropriate
remedy. The power to amend or alter the order after its
duration is extended by the State Government cannot in my
judgment be denied to the Magistrate merely because he is an
Executive Magistrate.
In adjudging the reasonableness of the restrictions imposed
by the exercise of power on the fundamental rights of the
citizens, absence of a provision for judicial review and of
machinery forobtaining an order recalling or amending the
order made in exercise of that power have to be given due
weight : Virendra v. The
187
State of Punjab and Anr. (1) But as already pointed out the
State Government has to make an order not on any subjective
satisfaction. The order is liable to rescission or
alteration under sub-s. (4). Validity of an order made by a
Magistrate is open to challenge on -appropriate ground even
after it is extended by the direction of the State
Government in a proceeding before the High Court, for the
jurisdiction of the High Courts to examine the validity of
the order of the Magistrate is not affected by the extension
of the duration of the order by the direction of the
executive. Again under sub-s. (4) of s. 144 a proceeding
for withdrawal or modification of the order may be initiated
even after the State has by direction extended its duration.
I am unable to hold that the order of the Magistrate gets
merged into the direction of the State Government when its
duration is extended. In terms, sub-s. (6) provides that
the order made by a Magistrate shall not remain in force for
more than two months from the making thereof, unless in the
classes of cases specified the State Government otherwise
directs. Therefore, even after the period is extended by
the direction of the State Government the order continues to
remain the order of the Magistrate. The declaration made by
the State Government only removes the temporaly limit on its
operation prescribed by sub-s. (6).
In State of Madras v. V. -G. Row(2), Patanjali Sastri,
C.J., observed that in considering the reasonableness of
laws imposing restrictions on fundamental rights, the test
of reasonableness, wherever prescribed, should be applied to
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each individual statute impugned and no abstract standard or
general pattern of reasonableness can be laid down as
applicable to all cases.
Exercise of power under section 144 is intended to ensure
the maintenance of law and order, and for that purpose the
section authorises the Magistrate, exercising judicial power
of the State, on being satisfied on sufficient grounds, and
where it is necessary that immediate prevention or speedy
remedy is desirable, to make an appropriate order. Normally
an order made by a Magistrate under sub-s. (1) of S. 144
remains in force so long as it serves its purpose, but not
longer than two months. In case the danger or emergency or
apprehension thereof is deep rooted, the State Government is
competent by direction to extend the duration of the order.
The duty of maintaining law and order ordinarily lies on the
executive, but since the making of an order under S. 144
involves serious infringement of the rights of the citizens,
exercise of, the power is conditioned by a judicial
evaluation of the circumstances which necessitate it.
Whether the order remains operative for its normal duration,
or is extended by direction of the- execu-
(1) [1958] S.C.R. 308.
(2) [1952] S.C.R. 597.
188
tive, the Magisterial verdict lends sustenance to it.
Apprehension that the executive may abuse the power to
extend the duration will not, in my judgment, justify the
Court in holding that the extension shifts the source of
authority of the order, or vitiates the Magisterial
evaluation. I cannot accept the abstract standard that
every statute in the execution of which fundamental rights
of citizens may be infringed will be adjudged unreasonable,
if within its framework the statute does not provide
machinery for judicial scrutiny or for rescission of the
action taken. Nor can I accept the plea that -absence of
machinery in the Code for approaching the High Court for
redress against the direction of the State, and absence of
express provision for moving the State for rescission or
alteration of the duration constitute a test of
unreasonableness. Reasonableness of a statutory provision
cannot be determined by the application of a set formula: it
must be determined on a review of the procedural and
substantive provisions of the statute keeping in mind the
nature of the right intended to be infringed, underlying
purpose of the restriction contemplated to be imposed,
gravity of the evil intended to be remedied thereby, object
intended to be achieved by the imposition of restriction,
and other relevant circumstances.
In my view, the appeal must be allowed and the order passed
by the High Court set aside.
Hegde, J.-In a proceeding under Art. 226 of the Constitution
initiated by the respondents the High Court of Patna struck
down the second part of sub-s. (6) of s. 144, Criminal
Procedure Code as being violative of sub-cls. (b), (c) and
(d) of cl. (1) of Art. 19 of the Constitution. The State of
Bihar after obtaining a certificate from the High Court
under Art. 132(1) of the Constitution has brought this
appeal.
The respondents are not represented-in this Court. This
Court by its order dated April 7, 1969 appointed Mr.
Ramamurthi, a senior Advocate of this Court as an amicus
curiae to assist the Court at the hearing of the appeal.
The Union of India has intervened and it was represented
before us by Mr. B. Sen. As the question involved in this
case directly concerns a legislation by the central
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legislature, notice to Attorney General was also given and
the Attorney General was represented by Dr. Singhvi.
The only question that arises for decision in this appeal is
whether the second part of sub-s. (6) of s. 144, Criminal
Procedure Code namely the words "unless, in cases of danger
to human life, health or safety, or a likelihood of a riot
or any affray, the (State Government) by notification in the
Official Gazette, otherwise directs" are liable to be struck
down as being violative of any of the clauses in Art. 19 (1
) of the Constitution.
189
The facts leading to the present proceedings are as follows
It appears that there was dispute between two sections of
workers in the Tata Workers Union, Jamshedpur. In that
connection Shri K. N. Mishra, City Magistrate, Jamshedpur
passed an order against respondent Verma under sub-s. (1) of
s. 144, Criminal Procedure Code on May 21,1961. He followed
up that order by another order against respondents, K. K.
Mishra, Sadhu Singh, P. C. Joshi and M. N. Govende on June
20, 1961. Thereafter the State Government of Bihar passed
an order under sub-s, (6) of s.144, Criminal Procedure Code
and notified the same in the Bihar Official Gazette on July
18, 1961. It is the validity of this notification that is
in issue in this case. That notification reads
"NOTIFICATION
The 18th July, 1961.
No. 8255 C Whereas the following orders have
been made under the provision of section 144,
Code of Criminal Procedure, 1898 (V of 1898)
by Shri K. N. Mishra, City Magistrate,
Jamshedpur
1. TO
Shri R. L. Verma,
Jamshedpur.
Whereas it has been made to appear to me that
the President, Tata Workers’ Union,
Jamshedpur, has informed you regarding the
adoption of the resolution of ratification of
no-confidence motion against you in the
General Body meeting of T.W. Union on 17th May
1961, and you received the letter on 18th May,
1961 and still you have not refrained from
attending the Office of Tata Workers’ Union,
situated. at K. Road, Jamshedpur, and I am
satisfied that your going to the office of
Tata Workers’ Union, may lead to a serious
breach of the peace, the prevention of which
is immediately necessary.
I, K. N. Mishra, City Magistrate, Jamshedpur,
specially empowered under section 144,
Criminal Procedure Code, therefore, hereby
restrain you from going to the office of the
Tata Workers, Union, situated at K. Road,
Bistupur, Jamshedpur, for a period of 60
(sixty) days, with effect from today. You are
also called upon to show cause by 25th May,
1961,at 6-30 a.m. as to why this order under
section 144, Criminal Procedure Code, should
not be made absolute against you.
190
Given under my hand and seal of the Court,
this the 21st day of May 1961.
Sd. K. N. Mishra
City Magistrate Jamshedpur 21-5-1961.
2. To
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(1) Shri Kamla Kant Mishra, (2) Shri Sadhu
Singh (3) Shri P. C. Joshi and (4) Shri M. N.
Govende, all of Tata Workers’ Union.
Whereas the officer in charge of Bistupur P.S.
has submitted a report that there is serious
apprehension of breach of peace in respect of
the Tata Workers’ Union Office and the same
still continues.
And whereas I am satisfied that a serious
apprehension of breach of peace still exists
due to rivalry between two rival groups of the
Tata Workers’ Union and the same (breach of
peace) cannot otherwise be prevented unless
these four members of the O.P. are prohibited
from entering into the office and compound of
the Tata Workers’ Union at ’K’ Road Bistupur,
for _a further period of 30 (thirty) days, I.
K. N. Mishra, City Magistrate, Jamshedpur,
specially empowered under section 144,
Criminal Procedure Code do hereby prohibit
Shri Kamla Kant Mishra, Shri Sadhu Singh, Shri
P. C. Joshi and Shri M. N. Govende from
entering into the office and compound of the.
Tata Workers’ Union situated at ’K’ Road,
Bistupur, for a further period of 30 (thirty)
days with effect from today, the 20th June
1961, and also call upon you to show cause why
this order under section 144, Criminal
Procedure Code, should not be made absolute
against you--Cause, if any be on 29th June,
1961, ’at 6-30 a.m.
Given under my hand and the seal of the Court
this 20th day of June, 1961.
Sd. K. N. Mishra, City Magistrate, Jamshedpur,
20-6-1961.
And whereas the above orders expire on the
19th July, 1961, and whereas the Governor of
Bihar is satisfied that the conditions which
rendered these orders necessary still exist
and that there is apprehension that they may
continue to exist for a longer time and that
it is necessary that these orders should be
"tended for
191
a further period beyond the present date of
their expiry in the interest of the safety of
the life of the inhabitants of the town of
Jamshedpur and in order to avoid the risk of
riotor affray.
Now, therefore, in exercise of the powers
conferred by sub-section (6) of the Section
144 of the said Code, the Governor of Bihar is
pleased to direct that the above orders will
continue to remain in force for a period of
four months, with effect from the date of-
publication of this notification in the Bihar
Gazette, unless previously withdrawn by a
notification in the said Gazette.
By Order of the Governor,of Bihar, M. Sinha,
Deputy Secretary to Government."
At this stage we may mention that the validity of the orders
made by the City Magistrate, Jamshedpur on May 21, 1961 and
June 20, 1961 was not challenged in the present proceedings.
Nor was the validity of any portion of s. 144, other than
mentioned earlier was assailed. The validity of parts of s.
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144 other than that impugned in the present proceedings has
been upheld by this Court in Babulal Parate v. State of
Maharashtra and Ors.
In order to consider the validity of the impugned part of s.
144 Criminal Procedure Code, it is necessary to have before
us the entire section. That section reads thus :
"(1) In cases where, in the opinion of a
District Magistrate, a Chief Presidency
Magistrate, Sub-Divisional Magistrate, or of
any other Magistrate (not being a magistrate
of the third class) specially empowered by the
(State Government) or the Chief Presidency
Magistrate or the District Magistrate to act
under this section (there is sufficient ground
for proceeding under this section and)
immediate prevention or speedy remedy is
desirable, such Magistrate may, by a written
order stating the material facts of the case
and served in the manner provided by section
134, direct any person to abstain from a
certain act or to take certain order with
certain property in his possession or under
his management, if -such Magistrate considers
that such direction is likely to prevent,
or tends to prevent, obstruction annoyance or
injury, or risk of obstruction, annoyance or
injury to any person lawfully employed, or
danger to human life, health or safety, or a
disturbance of the public tranquillity, or a
riot, or an affray,
(1) [1961] 3 S.C.R. 423.
192
(2) An order under this section may, in
cases of emergency or in cases where the
circumstances do not admit of the serving in
due time of a notice upon the person against
whom the order is directed, be passed, ex-
parte.
(3) An order under this section may be
directed to a particular individual, or to the
public generally when frequenting or visiting
a particular place.
(4) Any Magistrate may, (either on his own
motion or on the application of any person
aggrieved) rescind, or alter any order made
under this section by himself or any
Magistrate subordinate to him, or by his pre-
decessor in office.
(5) Where such an application is received,
the Magistrate shall afford to the applicant
an early opportunity of appearing before him
either in person or by pleader and showing
case against the order; and it the Magistrate
rejects the application wholly or in part, he
shall record in writing his reasons for so
doing.
(6) No order under this section shall remain
in force for more than two months from the
making thereof, unless, in cases of danger to
human life, health or safety, or ’a likelihood
of a riot or an affray, the (State Government)
by notification in the Official Gazette,
otherwise directs."
It may be noted that orders under sub-ss. (1), (2), (3), (4)
and (5) of s. 144 can only be passed by superior
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Magistrates.
This Court in Babulal Parate’s case(1) sustained the
validity of an order made by a Magistrate under s. 144(1)
because of the various safeguards provided in the section.
It may be seen that an order made by a Magistrate under s.
144(1), Criminal Procedure Code is open to be revised on the
basis of any representation made by the aggrieved party and
is also revisable by the High Court. An analysis of the
section shows that an order -under that provision is subject
to the following safeguards :
(1) It has to be made by a superior
Magistrate;
(2) While making the order the Magistrate
has to act judicially;
(3) The order will be in operation for a
short period -an order of a temporary nature;
(4) An opportunity is given, to the
aggrieved party of showing cause against that
order;
(5) Reasons have to be recorded by the
Magistrate for rejecting an application under
s, 144(4) and
(1) [1961] 3 S.C.R. 423
193
(6) The order of the Magistrate being a
judicial order, it can be challenged in
revision before the High Court under s. 435
read with s. 439, Criminal Procedure Code.
It was urged by Mr. Ramamurthi that whereas the legislature
had provided adequate safeguards in respect of orders made
by Magistrates, it has failed to provide for any safeguard
in respect of orders made by the State Government under the
second part of sub-s. (6) of s. 144, Criminal Procedure
Code; before making an order under that provision, the State
Government is not required to make any inquiry; no
opportunity is given to the aggrieved party to show cause
against the order; the order made by the State Government
need not be of a temporary nature and the order of the State
Government is neither appealable nor revisable. Hence
according to him the restriction imposed on the fundamental
rights guaranteed to the respondents under Art.
19(1)(b)(c)’(d) viz., to assemble peaceably without -arms,
to form associations or unions and to move about freely
throughout India, is an unreasonable restriction.
The State has not been consistent in its stand. Before the
High Court, in its grounds of appeal filed as well as in the
initial stage of the arguments of Mr. Goburdan learned
counsel for the State of Bihar and Dr. Singhvi, the stand
taken was that the order made by the State Government is on
-administrative order and as such is not amenable to any
judicial review. But after some discussion and after
obviously realising the untenability of their contention,
they drastically changed their stand and contended that the
only operative orders are those made by the Magistrate, the
Government merely extended the duration of those orders; the
order of the Government got merged in the orders of the
Magistrate; the extended order is open to review under sub-
s. (4) of s. 144, Criminal Procedure Code and the same is
revisable under s. 435 read with S. 439, Criminal Procedure
Code.
We shall now proceed to consider whether there is any basis
for the new line of argument advanced in this Court. We
have earlier seen the scheme of S. 144, Criminal Procedure
Code. Its first sub-section empowers the appropriate
Magistrate to make any order contemplated therein. The
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second sub-section confers power on the Magistrate to pass
the ex-parte order under certain circumstances. The third
sub-section sets out the person against whom the order made
by the ’Magistrate can be directed. The fourth sub-section
provides for the review of the order by the Magistrate who
made the order or his successor in office or by his superior
either suo moto or on the representation made by the
aggrieved party. The fifth sub-section lays down the
procedure to be adopted by the concerned Magistrate to deal
with the repre-
194
sentation received. The first part of the sixth sub-section
fixes the period during which the order made by a Magistrate
would be in operation. Once the process set but above comes
to an end the Magistrate has no further function.
Thereafter it is clear he becomes functus officio in
relation to the order made by him. The power conferred on
the Government under the second part of the sixth sub-
section is an independent power. Before issuing any
direction under that sub-section, the Government has to
examine afresh whether the danger to human life, health or
safety or a likelihood of a riot or an affray continues and
if it continues how long the original order made by the
Magistrate should ’be kept alive. It is true that the basic
order is the Magistrate’s order but the decision that the
circumstances mentioned in sub-s. (6) of s. 144, Criminal
Procedure Code continue to exist and the original order
should be continued for a certain period of time or
indefinitely is that of the Government. It is not a case of
the Government order getting merged in the Magistrate’s
order. It is rather the converse. The Magistrate’s order
is adopted by the Government as its own order. Once the
Government notifies its direction. the responsibility for
the continuance of the original order is that of the
Government. It may be noted that the direction given by the
Government has to be notified in the Official Gazette. We
have earlier seen that the order with which we are concerned
in this case was made in the name of the Governor and signed
by a Secretary to the Government. That is the usual
procedure adopted in issuing directions under s. 144(6).
From all these, it is clear that the direction in question
is an executive act of the State Government coming within
Art. 166 of the ConstitutiON. If the direction given under
s. 144(6) is intended to merely keep alive a judicial order,
the legislature would have entrusted that function to a
judicial authority as has been done in the case of an order
under s. 144(1), Criminal Procedure Code. Further it is
least likely that the legislature would have prescribed that
such a direction should be notified in the Official Gazette.
It we bear in mind our legislative practice, it is difficult
to accept the contention that the legislature had conferred
upon the Magistrate power to review the directions given by
the Government. Section 144(4) says in clearest possible
terms that the Magistrate may rescind or alter any order
made under that section by himself or any magistrate sub-
ordinate to him or by a predecessor in office. It is not
possible to bring within the-scope of this section the order
made by the State Government. If the legislature intended
to bring within the scope of this sub-section direction
(which really means order) given by the State Government, it
would have stated so particularly when it specifically
referred to the order made by the Magistrate’s predecessor
in office or that made by a subordinate Magistrate. The
scheme of the section. the language employed therein and our
legislative practice militate against the new line of
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defence adopted
195
on behalf of the State of Bihar, Union of India and the
Attorney General in this Court.
From a plain reading of S. 144(6), Criminal Procedure Code,
it is clear that the power conferred on the State Government
is an independent power and it is an executive power. It is
not expected to be exercised judicially. It is open to be
exercised arbitrarily. The directions given in the exercise
of that power need not be of a temporary nature. The ambit
of that power is very large and it is uncontrolled.
Dr. Singhvi at one stage urged that the only check on the
exercise of that power by the Government is the searching
scrutiny of governmental actions expected from our
legislators. We shall assume as Dr. Singhvi wants us to do
that de executive actions of the Government are constantly
being watched by the legislators. But that does not absolve
this Court’s responsibility. To quote the felicitous
expressions of one of the illustrious former Chief Justices
of this Court (Sri Patanjali Sastri) in State of Madras v.
Y. G. Row(1) that as regards the fundamental rights, the
Constitution has assigned to this Court the role of a
Sentinel on the quivive. Proceeding further the learned
Chief Justice observed in that case that "while this Court
naturally attaches great weight to the legislative judgment,
it cannot desert its own duty to determine finally the
constitutionality of an impugned statute". It will be
neither fair nor just to this Court or to our Constitution
or even to our representatives, if this Court deserts its
duty on the assumption that the other organs of the State
would safeguard the fundamental rights of the citizens. Dr.
Singhvi’s contention ignores the very character of the
fundamental rights, the basic principles underlying them and
the safeguards carefully erected by our Constitution against
the legislative encroachment of the fundamental rights of
citizens. Further it is based on an over simplification of
the concept of the rule -of the majority in a parliamentary
democracy. It overlooks the fact that these safeguards are
primarily intended to protect the rights of the minority.
Dr. Singhvi’s contention also overlooks the fact that the
fundamental rights constitute a protective shield to the
citizens as against State actions. Therefore there is no
point in saying that the legislators would see that those
rights are not impugned.
The real question for decision is whether impugned
restriction is a reasonable restriction. Unless that
restriction can be considered as a reasonable restriction,
it does not get the protection of Sub-Arts. (3), (4) and (5)
of Art. 19, which means that restriction is violative of
Art. 19 (1 ) (b) (c) and (d).
(1) [1952] S.C.R, 597.
196
As observed in Dr. Khare v. State of Delhi(1), and
reiterated in V. G. Rao’s case (2 ) that in considering
reasonableness of laws imposing restrictions on fundamental
rights both substantive and procedural aspects of the law
should be examined from the point of view of reasonableness
and the test of reasonableness wherever prescribed should be
applied to each individual statute impugned and no abstract
standard or general pattern of reasonableness can be laid
down as applicable to all cases. It is not possible to for-
mulate an effective test which would enable the court to
pronounce any particular restriction to be reasonable or
unreasonable per se. All the attendant circumstances must
be taken into consideration and one cannot dissociate the
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actual contents of the restrictions from the manner of their
imposition or the mode of putting them into practice. In
other words in order to be a reasonable restriction, the
same -must not be arbitrary or excessive and the procedure
and the manner of imposition of the restriction must also be
fair and just. Any restriction which is opposed to the
fundamental principles of liberty and justice cannot be
considered reasonable.
One of the important tests to find out whether a restriction
is reasonable is to see whether the aggrieved party has a
right of representation against the restriction imposed or
proposed to be imposed. No person can be deprived of his
liberty without being afforded an opportunity to be heard in
defence and that opportunity must be adequate, fair and
reasonable. Further the courts have to see whether the
restriction is in excess of the requirement or whether it is
imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach
and may very well attract the protection of Sub-Arts. 1 to 6
of Art. 19, if the statute fails to provide sufficient
safeguards against its misuse the operative sections will be
rendered invalid-see The State of Madhya Pradesh v. Baldeo
Prasad(3). A restriction imposed under s. 3(1) of the
Punjab Special Powers Act, 1956 was struck down by this
Court in Virendra v. State of Punjab(4) on the ground that
the Act did not provide for any time for the operation of an
order made thereunder nor for a representation by the
aggrieved party.
Now adverting to the restriction impugned in this case, the
power to impose the same is conferred on the executive
Government and not to any judicial authority. There is no
provision to make representation by the aggrieved party
against the direction given by the Government; no appeal or
revision is provided against that direction and the order
made need -not be of temporary nature. Hence we agree with
the High Court that impugned provision is
(1) [1950] S.C.R 519.
(2) [1952] S.C.R. 597.
(3) [1961] 1 S.C.R. 970.
(4) [1958] S.C.R. 308,
197
violative of Art. 1 9 (1) (b) (c) and (d) and is not saved
by Art. 19(3), (4) or (5).
In the result this appeal fails and the same is dismissed.
ORDER
In accordance with the opinion of the majority the appeal is
dismissed.
G.C.
198