State
of Karnataka and Anr Vs. Dr. Praveen Bhai Thogadia
[2004] Insc 212 (31
March 2004)
Doraiswamy
Raju & Arijit Pasayat
(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 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 '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 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 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.
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 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 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.
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