Under the Criminal Procedure Code (hereinafter the Code) wide powers have been conferred on an Executive Magistrate to deal with emergent situations. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals, whether in a specific locality or in a town itself, where the situation has the potential to cause unrest or danger to peace and tranquility  in such an area, due to certain disputes. In brief, Section 144 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable.

It requires the magistrate to issue the order in writing setting forth the material facts of the case and the order is to be served in the manner provided by section. 134 of the Criminal Procedure Code. The wording of the section envisages a situation wherein the power provided there under may be exercised on the assessment of the Magistrate himself – a subjective satisfaction. However, the judicial pronouncement as dealt with in the paper, aptly show that certain stringent conditions have been imposed by the Courts on this most plenary powers. Therefore, as the case law discussed would indicate, not only would the Court consider the situations as assessed by the Magistrate but would also take into cognizance factors as to whether the orders issued under section 144 were vague or directed to a specific person.

Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility. The gist of action under S.144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the Executive Magistracy enabling it to perform that function effectively during the emergent situations.

In the case of Radhe Das v Jairam Mahtothe dispute was over a piece of property. The petitioners applied for restriction on the respondent from entering the property, which was ordered by the Magistrate under Section 144. However, while the judicial proceedings were in way the respondents too claimed for the same prohibition on the petitioners, which was subsequently granted by the Magistrate under the same section. The respondents 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 held that if the situation demands any action, then for prevention of public peace and tranquility, the individual rights of a person can be renounced for the greater benefit of the society at large. In the words of:
“To give jurisdiction under this section, the Magistrate shall be of opinion that immediate prevention or speedy remedy is desirable and that the direction he proposes to make is likely to prevent a disturbance of the public tranquility or a riot or an affray. In such circumstances private rights must give way.”
No order under Section 144 shall remain in force for more than two months but the state government can extent the validity for two months and maximum up to six months. It can be withdrawn at any point of time if situation becomes normal. Section 144 prohibits gathering of four or more people in the concerned area, while during the curfew people are instructed to stay indoors for a particular period of time. The government puts a complete restriction on traffic as well. Markets, schools, colleges and offices remain closed under the curfew and only essential services are allowed to run on prior notice.

Hidayutallah, C. J., stated in the celebrated case of Madhu Likaye v S.D.M. Monghyr, that section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and the fact that it may be abused is no ground for it’s being struck down. And the provisions of the Code properly understood are not in excess of the limits laid down in the Constitution for restricting the freedom guaranteed in it and that is precisely why the Court held that section 144 of the Criminal Procedure Code is valid and Constitutional.

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