Legal provisions regarding Urgency caused of nuisance or apprehended danger under section 144 of the Code of Criminal Procedure, 1973.
(1) In cases where, in the opinion of a District Magistrate, a sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under Section 144 and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, 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 magistrate, 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 safety, or a disturbance of the public tranquillity, or a riot, or an affray.
(2) An order under Section 144 may, in cases 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.
(3) An order under Section 144 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.
(4) No order under Section 144 shall remain in force for more than two months from the making thereof. However, if 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, it may, by notification, direct that an order made by a Magistrate under Section 144 shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under Section 144, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) 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 under the proviso to sub-section (4) of Section 144 of the Code.
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
An order under Section 144 is in the interest of maintenance of ‘public order’. The power conferred by Section 144 is not arbitrary, nor is unlimited; it is reasonable. Section 144 is attracted only in an emergency.
When a breach of the peace is anticipated, action is to be taken against the potential law breakers and not against the peaceful citizens whom it is expected that the law breakers will molest. Where there is conflict between a public interest and private right, the former must prevail.
The powers given to the Magistrate mentioned in Section 144 of the Code are very wide and must be exercised with discretion and discrimination. The urgency of a case of nuisance or apprehended danger is essential to its treatment under Section 144 of the Code, and the order to be passed under this Section must be of temporary nature.
Under Section 144 of the Code, the Magistrate may proceed only when immediate prevention or speedy remedy is desirable and he must be satisfied that there is danger to human life or disturbance of public tranquillity or a riot or an affray.
The power conferred on Magistrate under Section 144 of the Code is an extraordinary power; it enables them to suspend the lawful rights of the public if they think that such a suspension will be in the interest of public peace and safety.
These restrictions are within the limits of saving provisions of clauses (2) and (3) of Article 19 of the Constitution because the restrictions are in the interest of public order and general public.
Section 144 of the Code is intended to meet with emergency or cases of temporary urgency to keep things in status quo and not to pass an order which has practically the effect of mandatory injunction in favour of one of the two opposite parties whereby he is able to deprive the other completely of his ordinary legal rights.
The order under Section 144 must be based upon proper evidence. The order under Section 144 is not a judicial order, but an executive order. The order must be in writing. The order must contain a statement of the ‘material facts’ which the magistrate considers to be facts of the case and upon the footing of which he bases his order. The order must be specific and definite in its terms.
The ground for making an order under Section 144 should be to prevent—(i) obstruction; (ii) annoyance; (iii) injury to any person lawfully employed; (iv) danger to human life, health or safety; (v) a disturbance of the public tranquillity; (vi) a riot, and (vii) affray.
The following are some valid orders under Section 144 of the Code:
(1) An order restraining a person from building a wall.
(2) An order directing a person to cut the bundh created by him.
(3) An order prohibiting burials in certain places on sanitary ground.
(4) An order restraining other persons from reciting sankalpam on the bathing ghat of a holy tirtha.
(5) An order directing the two rival sects of Mohammedans should enter and worship in a particular mosque only at particular hours.
(6) An order prohibiting a meeting, if owing to the prevalence of ill feeling between certain persons likely to attend the meeting a breach of the peace is to be apprehended.
(7) An order prohibiting a procession on the ground that the magistrate would not be able to prevent a breach of the peace with the force at his disposal.
(8) An order banning on sale of lottery tickets of both private and State as it is of pernicious nature.
The words ‘certain act’ mean a definite act which would amount to an offence if not prevented or abstained.
Ordinarily, an order under Section 144 should not be made without giving an opportunity to the person to show cause why it should not be passed. But, sub-section (2) of Section 144 of the Code empowers a magistrate to pass an ex parte order under Section 144 only in case of emergency.
An order under Section 144 is not a bar to the institution of a civil suit by the party on whom the order is made. Orders passed under Section 144 are open to revision either by the Sessions Judge or by the High Court.
Power to prohibit carrying arms in procession or mass drill or mass training with arms.—Section 144-A of the Code of Criminal Procedure provides:
(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 organizing 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 organization.
(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, by 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 of the Indian Penal Code (i.e., ‘Arms” means articles of any description designed or adapted as weapons for offence or defence and includes firearms, sharp edged weapons, lathis, dandas and sticks).