Under the criminal procedure code wide powers are put on the magistrate to deal with the emergent situations. One such provisions is to impose restriction on the personal liberties of individuals, whether in a specific locality or in town itself, where the situation has the potential to create chaos, unrest, tranquility in such area due to certain disputes. Section 144 issues powers to issue an order absolute at once in urgent cases of nuisance or apprehend danger.
Actions under this section is anticipatory which means it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency. Where there is a danger of some event that has the potential to cause major public nuisance or damage to public tranquility. Preservation of the public peace and tranquility is the primary function of the government and power is given to the executive magistrate enabling him to perform that function effectively during the emergency situations.
In the case of Radhe Das v. Jairam Mahto the dispute was over a piece of property. The plaintiff applied for the restriction to defendant to enter into his property which was ordered by magistrate under section 144. The respondent in response to this order brought the present action on the ground that their right over the property was being violated by the order. The court ruled out that for public peace and tranquility respondent should be given his right and not be violated. The principles laid down are:
- Urgency of the situation and the power is to be used for maintaining public peace and tranquility
- Private rights may be temporarily overridden when there is a conflict between public interest and private rights
- Questions of title to properties or entitlement to rights or disputes of civil nature are not open for adjudication in a proceeding under section 144.
- Where those questions have already been decided by the civil courts or by judicial judgements, the magistrate should exercise the power under section 144 in aid of those rights and against those who interfere with the lawful exercise.
This gives magistrate full power to take quick actions in cases where in cases of emergency quick remedy is required for speedy trials. If there is no urgency nor requirement of quick actions or when there is no danger to human life the magistrate can’t use his power.
This power is so absolute that it enables them to suspend the lawful rights of person if they think such a suspension will be in the interest of public peace and safety. The orders under this section aren’t of permanent or semi-permanent nature.
Orders under this section are only justifiable when:
- There is annoyance in public it can be either physical or mental. Section 144 can be issued against the newspapers if they are against the public peace or amount to commit nuisance.
- Injury to human life
- Disturbance to public tranquility
The constitutional validity of section 144 is justified by supreme court in a judgement where they state that:
- Although the magistrate has a power under this section to pass ex-parte however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed. Only in cases of extreme critical situations that the magistrate has to resort to passing an ex-parte order.
- Additionally, the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. This supports the view that the power granted under this section is not arbitrary.
- An opportunity for hearing and to show cause is also provided to the person challenging the order to the magistrate. Therefore, the principles of natural justice are also complied with under this section.
Contents of the order:
- The order must be in writing
- Order must be specific and definite in terms
- Only material facts are to be stated in order
- Prohibition must be completely stated.