State of Bihar Vs. K. K. Misra &
Ors [1969] INSC 315 (29 October 1969)
29/10/1969 SHAH, J.C.
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
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 direc182 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 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. 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 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 consideration 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.
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 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 immediate
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 Constitution, 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 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.
Subsection (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 Government 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 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 judicialand 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 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 theexecu(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 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 (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 ofpublication 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. 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, exparte.
(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 predecessor 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 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 subs. (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 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
representation 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 subsection 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 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. 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 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 quinine.
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 formulate 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 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.
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