- Section 144 Cr.P.C empowers the District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf to issue order in urgent cases of nuisance or apprehended danger.
- An order can be issued 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”
Grounds for imposition
The order can be passed only “if such Magistrate considers”, that there is sufficient ground for :
- 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
An order passed under this section cannot remain in force for more than two months unless the State Government considers it necessary to extend it for preventing danger to human life, health or safety or for preventing a riot or any affray
Legal position of Section 144 Cr.P.C :Judgements
- In Madhu Limaye vs Sub-Divisional Magistrate (1970) , the Supreme Court upheld the Constitutionality of Section 144 on the reasoning that it constituted a reasonable restriction ‘in the interest of public order.
- In Babulal Parate v State of Maharashtra (1961), the Court had stated that 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.” The magistrate must however, be satisfied that immediate prevention the acts is necessary to counteract danger to public safety etc.
- In the Ramlila Maidan Case (2012),the Court had stated that the power under Section 144 must be exercised in the interest of public order, for public safety and tranquillity, and to serve public purpose and protect public order. The threat should not be a mere perception of threat but a definite and substantiated one.
- In Puttaswamy Case (2018), The court had held Test of Proportionality as a guarantee against arbitrary state action to ensure that the encroachment on the right is not disproportionate to the purpose of the law.
Test of proportionality
The SC had laid down a four-fold test to determine proportionality:
- A measure restricting a right must have a legitimate goal (legitimate goal stage).
- It must be a suitable means of furthering this goal (suitability or rationale connection stage.
- There must not be any less restrictive but equally effective alternative (necessity stage).
- The measure must not have a disproportionate impact on the right holder (balancing stage).
Apex Court’s latest judgement on Kashmir lockdown and its effect on Section 144 Cr.P.C.
The Supreme Court, in its judgement on Kashmir Lock down, on Friday laid down certain directions regarding restrictions placed by orders passed under Section 144 of Cr.P.C.
The directions given and the legal position on Section 144 Cr.P.C. as summarised in the Order are as follows :
- Restrictions be based on the Concept of Proportionality :The Magistrate, while exercising his power under the section is duty bound to balance the rights and restrictions based on the principles of proportionality and the apply the least invasive measure.
- Publication of Orders: All the orders under Section 144 Cr.P.C must be published and these orders shall be open to being challenged before the High Court or the appropriate forum.
- Subject to Judicial Review : The orders passed under this section will also be subject to judicial review.
- Order in cases of apprehension of danger : The power under Section 144 of P.C. can be exercised and an order can be passed in case of existence of a present danger and also in cases of apprehension of danger. However, in cases where danger is apprehended and not presently existent, the danger should be in nature of an “emergency” ,and the order should be for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed. Therefore the power under Section 144 Cr.P.C. is both remedial and preventive.
- No suppression of speech and expression of opinion: The use of power and issuance of orders under Section 144 Cr.P.C. cannot be used to suppress legitimate expression of opinion or exercise of any democratic right.
- Repetitive orders under Section 144, Cr.P.C. would be an abuse of power.