Report No. 41
Temporary Orders in Urgent Cases of Nuisance and Apprehended Danger
Chapter XI consists of a single, wel.-known and frequently used sectio.-section 144. This confers an omnibus power on senior Magistrates to issue, what the marginal heading of the section pithily describes as "order absolute at once in urgent cases of nuisance or apprehended danger." The wide range of situations in which Magistrates may resort to this power in the public interest will be apparent from a reading of the second paragraph of su.-section (1). Neither the usefulness of the section nor its validity under the Constitution has been seriously questioned. In the earlier Report1, the Commission proposed only a formal amendment in su.-section (1), an amendment of substance in su.-section (3) and an additional su.-section with reference to su.-section (6).
1. 37th Report, paras, 353 to 355.
11.2. Section 144(1).-
Su.-section (1) of section 144 now confers power on "a District Magistrate, a Chief Presidency Magistrate, a Su.-divisional Magistrate or any other Magistrate, (not being a Magistrate of third class) specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section." It should, in our opinion, be quite sufficient to confer power on "a District Magistrate, a Su.-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf." It will be recalled that in metropolitan areas also, there will be Executive Magistrates appointed by the State Government for performing functions under the Code.
11.3. Section 144.-
As regards su.-section (3), the Commission noticed in the earlier Report1 the limitations of the expression "to the public generally when frequenting or visiting a particular place" and suggested that there should be a reference to area in addition to place and a reference to people residing in a place or area in addition to people frequenting or visiting a place or area. In view of the different opinions expressed in judicial decisions, su.-section (3) of section 144 requires to be amplified as follows.-
"(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally frequenting or visiting a particular place or area."
1. 37th Report, para. 354 and Appendix 9.
11.4. Section 144(6).-
Under su.-section (6), an order made under section 144 will not remain in force for more than two months "unless, in cases of danger to human life, health or safety, or a likelihood of a riot of an affray, the State Government otherwise directs." This loosely worded su.-section appears to confer a very wide power on the State Government to extend temporary orders made by Magistrates for an indefinite period in certain cases. The su.-section has come in for criticism from the constitutional angle in the High Courts. In the earlier Report1, the Commission, after discussing these decisions at length, considered it unnecessary to lay down any maximum period for the State Government's directions, but proposed that persons affected by the order should be given a right of representation to the State Government.
1. 37th Report, Appendix 10.
11.5. R.-draft suggested.-
We also agree that it is not necessary to specify any maximum period in su.-section (6), but we propose that it should be r.-drafted as follows and placed immediately after su.-section (3):
"(3A) No order under this section shall remain in force for more than two months from the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or an affray, the State Government may, by notification in the Official Gazette, direct that an order under this section shall remain in force for such longer period as it may specify."
The provisions of su.-sections (4) and (5) will then apply to an order the duration of which has been extended by the State Government under this proviso, as they apply to the original order of the Magistrate. There should be no need for a provision enabling the persons concerned to represent to the State Government.
No amendments are required in the other su.-sections of section 144.