SECTION 144 CrPC, 1973- In Light of "Anuradha Bhasin's" Judgement

Section 144- CODE OF CRIMINAL PROCEDURE states the

"Power to issue order in urgent cases of nuisance of apprehended danger."

PRIME DUTY OF STATE 

There can be no doubt in the fact that security is the prime duty of a State and therefore, in order to prevent disturbance of public order reasonable restrictions can be imposed. But, the the thin film of reasonable and unreasonable restrictions have to stated clearly, as every forward moving step towards restriction, tramples the fundamental rights of the citizenry.

EXPLAINING - SECTION 144  

1. Section 144, CrPC, is a preventive measure to deal with imminent threats to public peace and enables the Magistrate to issue either grant mandatory orders or prohibitory orders or both (Anuradha Bhasin vs Union Of India 2020)

2. Section 144 states, “Power to issue order in urgent cases of nuisance or apprehended danger"

The Section further states (... in the opinion of a District Magistrate....there is sufficient ground for proceeding under .... and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case..).

“Opinion” suggests that it must be arrived at after a careful inquiry by the Magistrate about the need to exercise the extraordinary power conferred under this provision.- para 108 (Anuradha Bhasin vs Union Of India 2020).

WRITTEN ORDER

3. The imposition of Section 144, shall be through a written order stating “material facts" so that it may be challenged on grounds mentioned in the order arrived after a preliminary inquiry on which the “opinion” of Magistrate is based.

NOT A BLANKET ORDER

4. Further, the order cannot be a blanket order as was in this case and shall be in compliance of the noble "principle of proportionality” as was held in Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016)

5. In Madhu Limaye v. Sub-Divisional Magistrate, Monghgyr, (1970) the court iterated that “Section 144, Cr.P.C. must be:

(a)exercised in urgent situations to prevent harmful occurrences. Since this power can be exercised absolutely and even ex parte, “the emergency must be sudden and the consequences sufficiently grave”

(b)exercised in a judicial manner which can withstand judicial scrutiny. ”

"PUBLIC ORDER" and "LAW AND ORDER"

6. In Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740, Court emphasised the difference between “public order” and “law and order” situation and held that situation of public order is more grave than law and order.

This suggests that more liberties will be curtailed in public order situation and hence the material fact should suggest the gravity of situation.

CONCLUSION

Thus imposing Section 144 in anticipation of violence alone but without due inquiry would be an anathema on individual liberties.

“Urgent situations” or “emergency” is to be found on case to case basis. Even if by any chance there is material for law and order situation, other means of lesser regressive nature should be first imposed. It is to be reiterated that power under Section 144 CrPC is an extraordinary one and hence shall be used in extra ordinary situations with extraordinary material facts and extraordinary care. Though such an order is an executive one, but shall always be well reasoned and based on material facts.