A Note on Section 144 CrPC

Starter: Section 144 is a major tool in the hands of the Executive Magistrate to prevent obstruction, annoyance; injury etc. to the Public in general. Once Section 144 is promulgated, the Penal Provision of it, breach is covered u/s 188 of IPC, where the disobedience of the order causes or tends to cause obstruction, annoyance or injury, to any persons lawfully employed or danger to human life, health or safety, or a riot or an affray. The offence is Bailable except for the states of Madhya Pradesh and Chattisgarh, where its non- bailable.

Constitutionality: Section 144 is covered by the provisions of article 19(2) of the constitution. After the enactment of the Constitution (First Amendment) Act, 1951, a law imposing restrictions on the liberty of speech or expression cannot be said to be ultra vires the Constitution if the restrictions have been imposed in the interest of public order. Hence the provisions of section 144 which empower the District Magistrate to impose pre-censorship on newspapers, are not inconsistent with the provisions of article 19(1) (a) of the Constitution [AIR 1957 Punj 1].

Nuisance: Section 144 CrPC empowers a District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the Stale Government or the District Magistrate in this behalf, to promulgate an order to any person not to repeat or continue a public nuisance, as defined in Section 268 of IPC, or any special or local law.

Domain: When the Magistrate is of  the opinion that there is sufficient ground for immediate prevention or speedy remedy is desirable in urgent cases of nuisance or apprehension of danger, such Magistrate may, by a written order stating the material facts of the case, direct any person to abstain from a certain act or to take certain order with respect to 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 to any person lawfully employed, or danger to human life, health or safely, or a disturbance of the public tranquillity, or a riot, or an affray.

Serving the Order Personally or ex parte: As far as practicable the order must be served on that person personally and in case 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 ex parte.

Duration of the Order: The order u/s 144 CrPC may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. The order can only remain in force for a period not exceeding two months, unless the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray. In that case the State Govt. may, by notification, direct that the order made by a Magistrate u/s 144 shall remain in force for a further period not exceeding six months from the expiry of magistrate’s order. This makes the possibility of having Section 144  in force for a period of 8 months at a stretch. However, the law is silent about successive promulgation of such orders which could take place after every period of such 8 months afresh.

Remedy to Aggrieved for Rescinding the Order: 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. Similarly, the State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it. In case of an application by an aggrieved person, the Magistrate or the State Government, shall provide an early hearing to the applicant or his Advocate, and if the application is rejected wholly or in part, a reasoned order in writing is a must.

Comparison with Section 133 CrPC: The Supreme Court in Suhelkhan Khudyarkhan v. State of Maharashtra has differentiated Section 133 from Section 144 in the Following Light:-

A proceeding under Section 133 is of a summary nature. It appears as a part of Chapter X of the Code which relates to maintenance of public order and tranquillity. The Chapter has been classified into four categories. Sections 129 to 132 come under the category of "unlawful assemblies". Sections 133 to 143 come under the category of "public nuisance". Section 144 comes under the category of "urgent cases of nuisance or apprehended danger" and the last category covers Sections 145 to 149 relating to "disputes as to immovable property". Nuisances are of two kinds, i.e. (i) Public; and (ii) Private. 'Public nuisance' or 'common nuisance' as defined in Section 268 of the Indian Penal Code, 1860 (in short the 'IPC') is an offence against the public either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires. It is an act or omission which causes any common injury, danger or annoyance to the public, or to the people in general who dwell or occupy property in the vicinity. 'Private nuisance' on the other hand, affects some individuals as distinguished from the public at large. The remedies are of two kinds - civil and criminal. The remedies under the civil law are of two kinds. One is under Section 91 of the Code of Civil Procedure, 1908 (in short 'CPC'). Under it a suit lies and the plaintiffs need not prove that they have sustained any special damage. The second remedy is a suit by a private individual for a special damage suffered by him. There are three remedies under the criminal law. The first relates to the prosecution under Chapter XIV of IPC. The second provides for summary proceedings under Sections 133 to 144 of the Code, and the third relates to remedies under special or local laws. Sub-section (2) of Section 133 postulates that no order duly made by a Magistrate under this Section shall be called in question in any civil Court. The provisions of Chapter X of the Code should be so worked as not to become themselves a nuisance to the community at large. Although every person is bound to so use his property that it may not work legal damage or harm to his neighbour, yet on the other hand, no one has a right to interfere with the free and full enjoyment by such person of his property, except on clear and absolute proof that such use of it by him is producing such legal damage or harm. Therefore, a lawful and necessary trade ought not to be interfered with unless it is proved to be injurious to the health or physical comfort of the community. Proceedings under Section 133 are not intended to settle private disputes between different members of the public. They are in fact intended to protect the public as a whole against inconvenience. A comparison between the provisions of Section 133 and 144 of the Code shows that while the former is more specific the latter is more general. Therefore, nuisance specially provided in the former section is taken out of the general provisions of the latter section. The proceedings under Section 133 are more in the nature of civil proceedings than of criminal nature. Section 133(1)(b) relates to trade or occupation which is injurious to health or physical comfort. It itself deals with physical comfort to the community and not with those acts which are not in themselves nuisance but in the course of which public nuisance is committed. In order to bring a trade or occupation within the operation of this Section, it must be shown that the interference with public comfort was considerable and a large section of the public was affected injuriously. The word `community' in Clause (b) of Section 133(1) cannot be taken to mean residents of a particular house. It means something wider, that is, the public at large or the residents of an entire locality. The very fact that the provision occurs in a Chapter containing "Public Nuisance" is indicative of this aspect. It would, however, depend on the facts situation of each case and it would be hazardous to lay down any straitjacket formula.

Remarks : Secion 144 CrPC brings a lot to mind. It brings along a state of Mini Emergency. It brings along a very solid example of delegated legislation, where the magistrate is empowered to pass an order on his subjective satisfaction prohibiting certain acts/ omissions and making its violation penal u/s 188 IPC . The order is passed in absence of legislative machinery superficially granting some limited sovereign powers to the Executive Magistrate. {Remember- Crime is a Social Wrong which the Sovereign prohibits}. It may be justified sometimes, in the sense that not every now and then a piece of legislation can be enacted, for a temporary situation in a local area. Therefore, we can also see a glimpse of Subsidiarity (bringing governance closer to people) in Section 144 CrPC.