STATE OF BIHAR Vs. KAMLA KANT MISRA

JUDGEMENT

(1.) The High Court of Patna has declared the second part of sub-s (6) of Section 144 of the Code of Criminal Procedure ultra vires. Sub-Section (6) reads:

(2.) Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where immediate prevention or speedy remedy is desirable. It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section, and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place, if he considers that his direction is likely to prevent or tends to prevent obstruction, annoyance or injury, or risk of 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. The order must state the material facts of the case and it must be served in the manner provided by Section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management. In cases of emergency or in cases where the circumstances do not admit of service in due time of a notice upon the person against whom the order is directed, it may be passed ex parte. The order remains in force for not more than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray otherwise directs. The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved, if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor in office. In deciding the application made to him the Magistrate must give an opportunity of appearing before him either in person or by pleader and showing cause against the order, and if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.

(3.) This Court in Babulal Parate v. State of Maharashtra, (1961) 3 SCR 423 = (AIR 1961 SC 884), held that Section 144 is intended to secure the public weal by preventing disorders, obstructions and annoyances. The powers conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature and may be imposed only in an emergency. The Court further held that the restrictions which the section authorisies are not beyond the limit prescribed by cls. (2) and (3) of Article 19 of the Constitution, for the prevention of such activities as are contemplated by the section is in public interest and therefore no less in the interest of public order. The Court observed that the wide power under the section may be exercised only in an emergency and for preventing obstruction, annoyance, or injury, etc. as specified therein and those factors necessarily condition the exercise of the power and, therefore, the power is not unlimited or untrammelled, and that the section cannot be struck down simply on the ground that the Magistrate might possibly abuse his power. Challenge to the validity of Section 144 in its entirety was negatived in Babulal Parate's case, (1961) 3 SCR 423 = (AIR 1961 SC 884). The Court however did not consider the validity of the power vested in the State executive to extend the duration of the order beyond two months, apparently because no argument was advanced at the Bar in that behalf.