Full Judgment Text
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CASE NO.:
Appeal (crl.) 401 of 2004
PETITIONER:
State of Karnataka and Anr.
RESPONDENT:
Dr. Praveen Bhai Thogadia
DATE OF JUDGMENT: 31/03/2004
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT
JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No. 3085/2003
ARIJIT PASAYAT, J.
Leave granted.
Though by passage of time, the basic issues seem to
have become infructuous, in view of the importance and
recurring nature of the legal issues involved, with consent
of the learned counsel for the parties, they are taken up.
For deciding the issues involved in the appeal the
background facts, which are practically undisputed, run as
follows:
The respondent by an order of Additional District
Magistrate (in short the ’ADM’), Dakshina Kannada was
restrained from entering the said district and from
participating in any function in the district for a period
of 15 days i.e. from 10.2.2003 to 25.2.2003. The order was
dated 7.2.2003. A function was organised at Mangalore on
13.2.2003 where several religious leaders were shown as the
likely participants. On 7.2.2003, a permission for holding
the meeting was obtained by the organisers from the District
Magistrate, Mangalore. Permission was also granted by the
police authorities and the Corporation. The ADM at this
stage passed an order dated 7.2.2003 in MAG(2) CR 352/2002-
03,Dand restrained the respondent as aforesaid on the ground
that the district had become communally sensitive and there
were several communal clashes starting from 1988 resulting
in several deaths and damage to public and private
properties. It was indicated in the detailed order passed
which was under challenge before the High Court of Karnataka
that the respondent during his visit to another place on
18.12.2002, had delivered an inflammatory speech which
incited communal feelings and the communal harmony was
greatly affected. The ADM felt that a similar speech by the
respondent would result in stoking communal feelings
vitiating harmonious social and communal atmosphere. The
respondent challenged the order in a petition under Section
482 of the Code of Criminal Procedure, 1973 (in short the
’Code’) before the High Court taking the stand that the ADM
had no jurisdiction, because he was not an Executive
Magistrate or had not been conferred with powers of an
Executive Magistrate. The respondent also took the stand
that his speeches had nothing to do with any communal dis-
harmony. They were made with reference to political issues
which have been the subject matter of debate for several
years. Only for political reasons a case was registered
against him. The petition was resisted on several grounds;
firstly it was pointed out that an alternate remedy was
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inbuilt under Section 144 of the Code and without exhausting
that statutory remedy, the present respondent should not
have rushed to the High Court for exercise of power under
Section 482 of the Code. The stand of the present respondent
that the time available was very short and result of the so-
called alternate remedy would not have yielded any fruitful
results is incorrect. Secondly, reference was made to
several instances where on account of the action of the
respondent, and his speeches and acts of organisers of the
function there were communal clashes and the District
administration had to intervene to avoid disturbances of
social tranquility and communal harmony.
The High Court by the impugned judgment held that the
ADM did not have jurisdiction to issue the order in
purported exercise of power under Section 144 of the Code.
It further held that serene communal atmosphere of the State
was an example of communal harmony and hope was expressed
that the sensible and knowledgeable people of the State
would not get swayed by any speeches touching communal
issues. Accordingly, the order passed by the ADM was
quashed.
In support of the appeal, Mr. Sanjay R. Hegde submitted
that the High court should not have interfered with an order
which was aimed at maintaining law and order in the area and
preventing untoward incidents. The prior conduct of the
respondent in giving speeches at several places and his
other activities which inflamed a violent reaction and
resulted in communal clashes and hatred had been properly
taken into account in passing the order under Section 144(3)
of the Code and should not have been lost sight of. In any
event, the conclusions of the High Court that the ADM had no
power to pass the order under Section 144 of the Code is
also without any legal foundation. In fact the Notifications
referred to by the High Court clearly show that the ADM was
possessed of such powers.
Per contra, learned counsel for the respondent
submitted that the High Court has taken the totality of the
circumstances into consideration before passing order under
challenge in this appeal and that on mere hypothetical
assumptions that the respondent would or may deliver
speeches which might destroy communal harmony, the order
should not have been passed. In any event, when the ADM did
not have the power to pass the order, the other grounds were
really of academic interest.
Courts should not normally interfere with matters
relating to law and order which is primarily the domain of
the concerned administrative authorities. They are by and
large the best to assess and to handle the situation
depending upon the peculiar needs and necessities, within
their special knowledge. Their decision may involve to some
extent an element of subjectivity on the basis of materials
before them. Past conduct and antecedents of a person or
group or an organisation may certainly provide sufficient
material or basis for the action contemplated on a
reasonable expectation of possible turn of events, which may
need to be avoided in public interest and maintenance of law
and order. No person, however, big he may assume or claim to
be, should be allowed irrespective of the position he may
assume or claim to hold in public life to either act in a
manner or make speeches which would destroy secularism
recognised by the Constitution of India, 1950 (in short the
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’Constitution’). Secularism is not to be confused with
communal or religious concepts of an individual or a group
of persons. It means that State should have no religion of
its own and no one could proclaim to make the State have one
such or endeavour to create a theocratic state. Persons
belonging to different religions live throughout the length
and breadth of the country. Each person whatever be his
religion must get an assurance from the State that he has
the protection of law freely to profess, practice and
propagate his religion and freedom of conscience. Otherwise,
the rule of law will become replaced by individual
perceptions of ones own presumptuous good social order.
Therefore, whenever the concerned authorities in charge of
law and order find that a person’s speeches or actions are
likely to trigger communal antagonism and hatred resulting
in fissiparous tendencies gaining foot hold undermining and
affecting communal harmony, prohibitory orders need
necessarily to be passed, to effectively avert such untoward
happenings.
Communal harmony should not be made to suffer and be
made dependent upon will of an individual or a group of
individuals, whatever be their religion be it of minority or
that of the majority. Persons belonging to different
religions must feel assured that they can live in peace with
persons belonging to other religions. While permitting
holding of a meeting organised by groups or an individual,
which is likely to disturb public peace, tranquility and
orderliness, irrespective of the name, cover and methodology
it may assume and adopt, the administration has a duty to
find out who are the speakers and participants and also take
into account previous instances and the antecedents
involving or concerning those persons. If they feel that the
presence or participation of any person in the meeting or
congregation would be objectionable, for some patent or
latent reasons as well as past track record of such
happenings in other places involving such participants
necessary prohibitory orders can be passed. Quick decisions
and swift as well as effective action necessitated in such
cases may not justify or permit the authorities to give
prior opportunity or consideration at length of the pros and
cons. The imminent need to intervene instantly having
regard to the sensitivity and perniciously perilous
consequences it may result in, if not prevented forthwith
cannot be lost sight of . The valuable and cherished right
of freedom of expression and speech may at times have to be
subjected to reasonable subordination of social interests,
needs and necessities to preserve the very chore of
democratic life - preservation of public order and rule of
law. At some such grave situation at least the decision as
to the need and necessity to take prohibitory actions must
be left to the discretion of those entrusted with the duty
of maintaining law and order, and interposition of Courts -
unless a concrete case of abuse or exercise of such sweeping
powers for extraneous considerations by the authority
concerned or that such authority was shown to act at the
behest of those in power, and interference as a matter of
course and as though adjudicating an appeal, will defeat the
very purpose of legislation and legislative intent. It is
useful to notice at this stage the following observations of
this Court in the decision reported in Madu Limaye v. Sub
Divisional Magistrate, Monghyr and others (1970 (3) SCC
746):
"The gist of action under Section 144 is
the urgency of the situation, its efficacy in
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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. It is not an ordinary power
flowing from administration but a power used
in a judicial manner and which can stand
further judicial scrutiny in the need for the
exercise of the power, in its efficacy and in
the extent of its application. There is no
general proposition that an order under
Section 144, Criminal Procedure Code cannot be
passed without taking evidence: see Mst.
Jagrupa Kumari v. Chobey Narain Singh (37
Cl.L.J.95) which in our opinion is correct in
laying down this proposition. These
fundamental facts emerge from the way the
occasions for the exercise of the power are
mentioned. Disturbances of public
tranquillity, riots and affray lead to
subversion of public order unless they are
prevented in time. Nuisances dangerous to
human life, health or safety have no doubt to
be abated and prevented. We are, however, not
concerned with this part of the section and
the validity of this part need not be decided
here. In so far as the other parts of the
section are concerned the key-note of the
power is to free society from menace of
serious disturbances of a grave character.
The section is directed against those who
attempt to prevent the exercise of legal
rights by others or imperil the public safety
and health. If that be so the matter must
fall within the restriction which the
Constitution itself visualizes as permissible
in the interest of public order, or in the
interest of the general public. We may say,
however, that annoyance must assume
sufficiently grave proportions to bring the
matter within interests of public order."
The High Court in our view should not have glossed over
these basic requirements, by saying that the people of the
locality where the meeting was to be organised were sensible
and not fickle minded to be swayed by the presence of any
person in their amidst or by his speeches. Such presumptive
and wishful approaches at times may do greater damage than
any real benefit to individual rights as also the need to
protect and preserve law and order. The Court was not acting
as an appellate authority over the decision of the official
concerned. Unless the order passed is patently illegal and
without jurisdiction or with ulterior motives and on
extraneous considerations of political victimisation of
those in power, normally interference should be the
exception and not the rule. The Court cannot in such matters
substitute its view for that of the competent authority.
Our country is the world’s most heterogeneous society,
with rich heritage and our Constitution is committed to high
ideas of socialism, secularism and the integrity of the
nation. As is well known, several races have converged in
this sub-continent and they carried with them their own
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cultures, languages, religions and customs affording
positive recognition to the noble and ideal way of life -
’Unity in Diversity’. Though these diversities created
problems, in early days, they were mostly solved on the
basis of human approaches and harmonious reconciliation of
differences, usefully and peacefully. That is how secularism
has come to be treated as a part of fundamental law, and an
unalignable segment of the basic structure of the country’s
political system. As noted in S.R. Bommai v. Union of India
etc. (1994 (3) SCC 1) freedom of religion is granted to all
persons of India. Therefore, from the point of view of the
State, religion, faith or belief of a particular person has
no place and given no scope for imposition on individual
citizen. Unfortunately, of late vested interests fanning
religious fundamentalism of all kinds vying with each other
are attempting to subject the constitutional machinaries of
the State to great stress and strain with certain quaint
ideas of religious priorities, to promote their own selfish
ends, undettered and unmindful of the disharmony it may
ultimately bring about and even undermine national
integration achieved with much difficulties and laudable
determination of those strong spirited savants of yester
years. Religion cannot be mixed with secular activities of
the State and fundamentalism of any kind cannot be permitted
to masquerade as political philosophies to the detriment of
the larger interest of society and basic requirement of a
welfare State. Religion sans spiritual values may even be
perilous and bring about chaos and anarchy all around. It
is, therefore, imperative that if any individual or group of
persons, by their action or caustic and inflammatory speech
are bent upon sowing seed of mutual hatred, and their
proposed activities are likely to create disharmony and
disturb equilibrium, sacrificing public peace and
tranquility, strong action, and more so preventive actions
are essentially and vitally needed to be taken. Any speech
or action which would result in ostracization of communal
harmony would destroy all those high values which the
Constitution aims at. Welfare of the people is the ultimate
goal of all laws, and State action and above all the
Constitution. They have one common object, that is to
promote well being and larger interest of the society as a
whole and not of any individual or particular groups
carrying any brand names. It is inconceivable that there can
be social well being without communal harmony, love for each
other and hatred for none. The chore of religion based upon
spiritual values, which the Vedas, Upanishad and Puranas
were said to reveal to mankind seem to be -"Love others,
serve others, help ever, hurt never" and "Sarvae Jana
Sukhino Bhavantoo". Oneupship in the name of religion,
whichever it be or at whomsoever’s instance it be, would
render constitutional designs countermanded and chaos,
claiming its heavy toll on society and humanity as a whole,
may be the inevitable evil consequences, whereof.
Coming to the other issues relating to the jurisdiction
of the ADM to pass the order, reference may be made to
Section 144 of the Code. Section 144 appears in Chapter X
dealing with "Maintenance of Public Order and Tranquility"
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 a
Sub-Divisional Magistrate or any other Executive Magistrate
specially empowered by the State Government in this behalf.
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The order can be passed when immediate prevention or speedy
remedy is desirable. The legislative intention to preserve
public peace and tranquility 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
inbuilt in Section 144 of the Code.
The stand of the respondent before the High Court was
that the ADM who passed the order was not covered by the
categories of officials empowered to pass the order. Section
20 of the Code deals with "Executive Magistrates".
Sections 20, 21 and 144 of the Code, altogether deal with
five classes of Executive Magistrates i.e. (i) District
Magistrate (ii) Additional District Magistrate (iii) Sub-
Divisional Magistrate (iv) Executive Magistrate and (v)
Special Executive Magistrate. Sub-section (1) of Section 20
provides that in every district and in every metropolitan
area, the State Government may appoint as many persons as it
thinks fit to be Executive Magistrates and shall appoint one
of them to be the District Magistrate. Sub-section (2) of
Section 20 is relevant to solve the present controversy, in
this regard. It not only enables the State Government to
appoint any Executive Magistrate to be an Additional
District Magistrate but also provides that such Magistrate
shall have such of the powers of a District Magistrate under
the Code or under any other law for the time being in force,
as may be directed by the State Government.
As observed by this Court in Hari Chand Aggarwal v. The
Batala Engineering Co. Ltd. and Ors. (AIR 1969 SC 483),
unless a person has been appointed under Section 20(1) of
the Code he cannot be called a District Magistrate, and
Additional District Magistrate is below the rank of District
Magistrate. The scheme of Section 20 leaves no manner of
doubt that the District Magistrate and the ADM are two
different and distinct authorities. In the above noted
decisions this Court was dealing with a notification
delegating power under Section 40 of the Defence of India
Act, 1962 issued by the Central Government empowering only
District Magistrates to exercise by virtue of the said
delegative powers under Section 29 of the said special
enactment, when it rejected the claim for its exercise
projected vis-a-vis Additional District Magistrate. But
under Section 20(2) of the Code the latter may exercise all
or any of the powers of a District Magistrate though the two
authorities cannot be equated and the Additional District
Magistrate cannot be called the District Magistrate. The
distinction is also clear from the fact that the object of
appointing ADM is to relieve the District Magistrate of some
of his duties. The crucial question therefore is whether the
ADM was an Executive Magistrate in terms of Section 20.
Under sub-section (1) of Section 20 the State
Government has the power to appoint as many persons as it
thinks fit to be the Executive Magistrates. Under sub-
section (2) any Executive Magistrate can be appointed as an
Additional District Magistrate. Therefore, first thing to be
seen is whether there was any appointment of an Executive
Magistrate as Additional District Magistrate.
It appears from the materials placed on record that on
27.3.1974 the Government of Karnataka had appointed w.e.f.
1st April, 1974, the Special Deputy Commissioner of a
District and the Head quarters Assistant to the Deputy
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Commissioner of a District who are appointed as Executive
Magistrates in Government Notification dated 27.3.1974 to be
Additional District Magistrate in such districts. The
Notification is numbered HD 10 PCR 74 dated 27.3.1974. The
Notification dated 27.3.1974 (Notification No.III) was
issued vide S.O. No. 539 in exercise of powers conferred
under sub-section (2) of Section 20 and was in supersession
of Government Notification No. HD PCR 65 dated 4.5.1968 and
Notification No. HD 33 PCR 73 dated 6.12.1973. The High
Court was of the view that in the Notification dated 9th
July, 1974 there was no reference to the Notification dated
27.3.1974 by which the Executive Magistrates were vested
with power under Section 144 who are appointed under the
Notification dated 27.5.1974 and which is altogether a
different notification and not relatable to a Notification
dated 27.3.1974. The ADM who passed the order in this case
was appointed under the Notification dated 27.3.1974.
The High Court felt that since the Notification dated
27.5.1974 was not before it, the inevitable conclusion was
that the ADM who passed the order had no authority to pass
the same. It was for the respondent who was questioning
before the High Court the authority of the ADM to place the
materials to substantiate his claim, though nothing
precluded the authority also to have placed the relevant
proceedings, if there had been any such. Since the
respondent whose duty it was did not produce the
notification, if at all adverse inference should have been
drawn against him. From the mere non-production alone, the
conclusion should not have been arrived at that the ADM had
no power to pass the order. The confusion arose because of
certain inaccuracies in the dates. The correct notification
is dated 27.3.1974 and not 27.5.1974. On verification, it is
categorically stated that there is no notification bearing
the date 27.5.1974 and it only refers to the notification
dated 27.3.1974. Similarly there is no relevant notification
dated 9.7.1974. In reality, it is dated 6.7.1974. The copies
of correct notifications have been placed on record by
learned counsel for the appellant-State. On consideration
thereof, the inevitable conclusion which follows is that the
Additional District Magistrate had jurisdiction by virtue of
his being appointed as ADM. This position is crystal clear
from reading the notifications dated 27.3.1974 and 6.7.1974.
The conclusions to the contrary arrived at by the learned
Single Judge in the High Court cannot be sustained.
During the course of hearing, learned counsel for the
parties submitted that the prohibitory orders should not be
allowed to be passed at the ipse dixit of the concerned
executive officials. There must be transparent guidelines
applicable. Since different fact situations warrant
different approaches, no hard and fast guidelines which can
have universal application can be laid down or envisaged.
The situation peculiar to a particular place or locality
vis-a-vis particular individual or group behaving or
expecting to behave in a particular manner at a particular
point of time may not the same in all such or other
eventualities in another part of the country or locality or
place even in the same State. The scheme underlying the very
provisions carry sufficient inbuilt safeguards and the
avenue of remedies available under the Code itself as well
as by way of judicial review are sufficient safeguards to
control and check any unwarranted exercise or abuse in any
given case and Courts should ordinarily give utmost
importance and primacy to the view of the Competent
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Authority, expressed objectively also, in this case without
approaching the issue, as though considering the same on an
appeal, as of routine, keeping in view the fact that orders
of the nature are more preventive in nature and not punitive
in their effect and consequences.
For all the reasons stated above, we are unable to
approve of the orders passed by the High Court in this case
and they are set aside. The appeal is disposed of
accordingly.