The incidents of public nuisance and apprehended danger of breach of peace, public tranquillity, or riot, or affray demand early action therefore, this section empowers the competent Magistrate to pass even ex parte orders to remain in force for a short duration upto two months which may be extended by the State Government upto six months in exceptional cases.
The Supreme Court in Acharya Jagdishwaranand v. Commissioner of Police, Calcutta has emphasized that an order made by the Magistrate under Section 144 is intended to meet an emergency situation arising out of nuisance or apprehended danger therefore it cannot be permanent in character, but is only of a temporary nature.
It is a settled law that Magistrate is authorised to act under Sections 144 (1) and (2) only when he is satisfied as regards the existence of such emergent or urgent circumstances which are likely to disturb public tranquillity and such urgency must be reflected in the order itself with reasons thereof. A mere statement that he is satisfied that there is every possibility for serious breach of peace between the parties as well as public tranquillity, is not sufficient to exercise power under Sections 144 (1) and (2) of the Code. A duty is cast upon the Magistrate to project the factual situation pertaining to urgent and emergent circumstances in rendering the ex parte order.
Whenever there is an urgency of prevention of public nuisance or apprehended danger, the Magistrate may issue a written order under Section 144 stating therein the material facts of the case and directing the person or persons to (i) abstain from certain act, or (ii) to take certain property in his possession or under his management.
The section contemplates issuance of such order by the Magistrate only in three situations namely, (i) to prevent obstruction, annoyance or injury to any person lawfully employed, (ii) to prevent danger to human life, health and safety; and (iii) to prevent disturbance of public tranquillity or riot or affray.
It is the urgency of situation and gravity of consequences which calls for urgent and immediate action on the part of Magistrate under this section. The emergency of the situation may require the Magistrate to issue ex-parte orders even without taking evidence.
The temporary suspension of right by the orders of Magistrate under Section 144 on particular occasion and imposition of restrictions thereon are within the ambit of saving provision of Arts. 19 (2) and (3) of the Constitution.
Thus an order issued by the Magistrate under Section 144 prohibiting petitioners from taking out immersion procession of Goddess Durga and passing in front of mosque with music on a particular day was held to be violative of the rights guaranteed to precisionists by Articles 25 and 26 of the Constitution. By an order issued under Section 144, the Magistrate cannot order a party to be dispossessed and order other party to be in possession of that thing.
The Supreme Court in Ghulam Abbas v. State of U.P., observed that in order issued under Section 144 is administrative in nature and not judicial or quasi-judicial. Its validity may be challenged by a writ petition if it violates any of the fundamental rights guaranteed by the Constitution of India.
Section 144 empowers the Magistrate to order a person or persons to abstain from doing a certain act that is preventing a person from doing an act. Therefore, it is obvious that he cannot make an order directing a person to do some act. This, in other words, means that the Magistrate can make only a restrictive order and not a positive order under Section 144.
A reading of the provisions of sub-sections (1), (2) , (3) and (4) along with the proviso of Section 144, makes it abundantly clear that the period of 60 days has to be calculated from the date on which prohibitory order was issued.
Sub-section (5) provides that any Magistrate may, either of 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.
This rescission or alteration is not in exercise of any appellate or revisional powers. The jurisdiction is special one conferred by this section. But a Magistrate cannot pass any interlocutory order staying the operation of an order passed by another Magistrate.
The State Government may also rescind or alter the order made by it under the Proviso to sub-section (4) of this section. It may do so either suo motu or on the application of any person who is aggrieved by such order.
Before rescinding or altering the order, the Magistrate or the State Government, as the case may be, shall afford an early opportunity to the applicant to appear and show cause against the order and the inquiry as contemplated by sub-section (7) shall be a judicial inquiry. The Magistrate or the State Government, as the case may be, must record reasons in writing for their finding in such inquiry.
The order issued by the Magistrate under Section 144, being in the interest of the general public, it may be directed either to a particular person or to public in general. But the place or locality to which an order under Section 144 (3) extends should be clearly specified so as to enable the public to know about the exact prohibited area.
The Supreme Court in Mohd. Ghulam Abbas v. Mohd. Ibrahim, held that the kind of orders mentioned in Section 144 (3) are intended to prevent dangers to life, health and safety or peace and tranquillity of members of the public.
They are, therefore, temporary orders which cannot last beyond two months from the date of issue of such orders as is clear from sub-section (6). But the question of title cannot be decided by an order passed under Section 144 of the Code.
Where permission was refused to the Bhartiya Janta Party to hold meeting and relaxing of prohibitory order under Section 144, Cr PC was also refused, the High Court of Calcutta quashed the said order and observed that holding of a meeting could not be totally prohibited, but necessary restrictions could have been imposed as a preventive measure.
An order passed by the Magistrate under Section 144 may also be quashed under Section 482 of Cr.P.C. (i.e., inherent powers of the higher Courts).
Disobedience of order under Section 144 is punishable under Section 188 of the Indian Penal Code, I860.
An order issued under Section 144, Cr PC is no bar to the filing of a suit in a Civil Court for establishment of civil right which has been infringed by the said order. But the Civil Court has no power to cancel or set aside an order passed under this section.
[144-A. Power to prohibit carrying arms in procession or mass drill or mass training with arms:
(1) The District Magistrate may, whenever he considers it necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.
(2) A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation.
(3) No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made.
(4) The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by notification, direct that a public notice issued or order made by the District Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification.
(5) The State Government may, subject to such control and directions as it may deem fit to impose, be general or special order, delegate its powers under sub-section (4) to the District Magistrate.
The word “arms” shall have the meaning assigned to it in Section 153-AA on the Indian Penal Code, 1860 (45 of I860).]
This new section has been inserted by the Code of Criminal Procedure (Amendment) Act, 2005 providing for additional measures for the preservation of public peace or public safety. Carrying of arms in procession or mass drill or mass training with arms in any public place has been prohibited by this section.