Report No. 37
Note on Section 144(6)
Section 144(6) of the Code of Criminal Procedure has been held to be unconstitutional by the Patna High Court, on the ground that it confers a power on the State Government to deprive a citizen of his right of movement and the right of association indefinitely, and gives no right of representation to the parties affected by the order, thus violating Article 19(1)(b), (c) and (d) of the Constitution.1
The judgment in the Patna case emphasises several elements as supporting the invalidity of section 144(6), namely,-
(i) indefinite period of time;
(ii) no right of appeal or revision to higher authority from the order of the State Government;
(iii) no right of antecedent hearing.
The validity of section 144, in general, has been upheld by the Supreme Court in Babu Lal's case.2 The Supreme Court's judgment is not referred to in the Patna case.
An analysis of the judgment of the Supreme Court would show, that in upholding the validity of section 144, one of the considerations which weighed with the Court was that the normal maximum duration of the order is two months from the date of its making, and the restraints imposed by the order are thus, intended to be of a temporary nature. The powers are exercisable by responsible Magistrates, and these Magistrates have to act judicially. Moreover, the restraints permissible under the provision are of a temporary nature, and can only be imposed in an emergency.
In a recent Kerala case,3 the vires of the sub-section was not in issue, but, referring to the Patna case, the Kerala High Court observed, "if that decision implies that an order under sub-section (6) is an independent order unaffected by any remedy that an aggrieved party may successfully pursue, either under sub-section (4) of section 144 or under section 439 of the Code, we must express our dissent". The Kerala High Court held, that an order extended by the State Government under section 144(6) could be rescinded by the Magistrate under section 144(4). It also observed, that the High Court could revise the order even when its duration had been extended by the State Government.
A provision somewhat similar to section 144(6) contained in section 37(3), Bombay Police Act, 1951, has been held to be valid by the Bombay High Court.4 Of the arguments advanced before the High Court, the following are of relevance:-
(1) That there was no limitation regarding the duration for which the order could continue. The High Court pointed out, that the continuation of the order depended upon the authority being satisfied that it was necessary for the preservation of public order.
(2) That the section did not afford any opportunity to the person affected to show cause. The High Court held, that the order under section 37 (prohibiting a procession) was an administrative order. Further, there was no allegation against any person, and it was difficult to understand what "representation" could be provided for. Moreover, the question whether there was an emergency or not, and whether the public order was threatened, could not be made the subject of a public debate between the Commissioner of Police and the citizens.
(3) That there was no corrective against the order. The High Court stated, that the Commissioner had to satisfy himself that conditions requiring continuance of the order were present. But he is the person on the spot, and to suggest that there should be a judicial corrective, or some other appellate authority, would stultify the object of the section.
For the present purpose, the question to be considered is this-Is the High Court competent to go into the propriety of the State Government's order ? On the one hand, there is no doubt that under section 144(6), the extension of period can be indefinite.5
On the other hand, the High Court's revisional powers are Wide.6-10 But, this specific question does not seem to have been decided so far.
It may be noted that, before 1923, section 435(3) barred revision of orders under section 144. The Select Committee11 on the 1921 Bill observed. "Clause 114.-It has been suggested from various quarters that revision should be allowed in respect of proceedings under sections 143 and 144 and Chapter XII. We do not agree that any change should be made in the law in this respect. Saiyad Raza Ali dissents from this conclusion, so far as cases under section 144 are concerned."
The question of revisional jurisdiction in respect of orders under section 144 was, however, debated (after the Select Committee's Report) in the Legislative Assembly.12 The question whether only Chartered High Courts could exercise such jurisdiction-and that too under the power of "superintendence"-was discussed. Dr. H.S. Gour moved13 an amendment to delete section 435(3), his argument being that if the High Courts had the revisional power-under "superintendence"-then section 435(3) was "confusing".14 The amendment was adopted by 36 votes to 29. The only speech opposing it was made by Mr. H. Honkinson, who opposed it on the ground that proceedings under section 144 are "really of an executive order", and a general power of revision should not be given.
1. Kamala Kant, ILR 41 Pat 871: AIR 1962 Pat 292 (295), para. 7: (1962) 2 Cr LJ 203 (Ramaswami C.J. and Choudhary J.) (Decided on 22nd January, 1962).
2. Babulal Parate v. State of Maharashtra, (1961) 2 SCR 423: AIR 1961 SC 884 (Decided on 12th January, 1961).
3. Varied Porinchukully v. State, AIR 1967 Ker 157: 1967 Cr LJ 898, para. 3. (July Part of Cr LJ).
4. Bapurao v. State, AIR 1956 Bom 300 (301), (para. 4), 302 (para. 7), 302 (para. 8) (Chagla C.J. and Dixit. J.).
5. Bhure Mal, ILR 45 All 526 (527): AIR 1923 All 606 (607) (Danies J.).
6. Editor. Tribune v. Emp., ILR 1942 Lah 510: AIR 1942 Lah 171 (FB).
7. Ardeshir (in re:), AIR 1940 Bom 42.
8. Rashid Allidina v. Jiwandas, AIR 1943 Cal 35 (38).
9. Port Commissioners v. Jogendra, AIR 1933 Cal 348.
10. Sriramamurthy (in re:), AIR 1931 Mad 242 (245).
11. Report of the Select Committee dated 26th June, 1922, under clauses 26 and 114.
12. Legislative Assembly Debates, Vol. III, No. 19, dated 18 January, 1923.
13. Legislative Assembly Debates, Vol. III, No. 32, dated 7th February, 1923.
14. Examples of Judicial opinion on the subject would be found in Shebalak Singh v. K.T. Kamoruddin, AIR 1922 Pat 435 (FB); in AIR 1921 Cal 30 (31) in 1(1882) ILR 8 Cal 580 (582); and in Gavinda Cheti v. Perumal Chetli, AIR 1916 Mad 662.