Gopalji Prasad v. State Of Sikkim And Others

1. The impugned proceeding under Section 144, Criminal Procedure Code clearly goes to show how this well-known section, so frequently resorted to by the people and also by the public authorities, is very often abused by improper and indiscriminate user. But before I proceed to consider and pronounce upon the legality and the propriety of this proceeding in some details, I will have to dispose of some of the preliminary objections to the maintainability of this revisional application raised by and on behalf of the State and the other respondent. It has been urged that this revisional application is not maintainable as the impugned order under Section 144. Criminal Procedure Code has already come to an end by efflux of time. If a proceeding under Section 144, Criminal Procedure Code is, as it cannot but be, a judicial proceeding, the order passed therein cannot but attract the revisional jurisdiction of the High Court, if such jurisdiction is invoked within the time allowed by law and if there are grounds justifying interference in revision and the act that the impugned order has ceased to be in force cannot be, by itself, a bar I to the maintainability of a revision. It has then been urged, in modification of the earlier contention, that, not that the High Court cannot, but that the High Court should not interfere in a revision where the impugned order is no longer in force. I do not think that any such straight cut and blanket proposition can be laid down and that, in my view, all that can be said is that the exercise of revisional power being discretionary, a revisional Court may in a given case decline to interfere on the ground that the impugned order has already ceased to be in force.

2. It may be noted that the provisions of this Section 144, Criminal Procedure Code had to meet the challenge on the ground of constitutionality before the Supreme Court more than once on the ground that they put unreasonable restrictions on and were, therefore, violative of the fundamental rights guaranteed by the Constitution and one of the main grounds on which this challenge was repelled by the Supreme Court was that the orders passed under the section are judicial orders and being so, could “be challenged in revision before the High Court under Section 435 read with Section 439, Criminal Procedure Code”. (See, State of Bihar v. K.K Misra, (1969) 3 SCC 337 : AIR 1971 SC 1667; Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 : (1961 (2) Cri LJ 16) and Madhu Limaye v. Sub-Divisional Magistrate, Monghyr, (1970) 3 SCC 746 : AIR 1971 SC 2486 : (1971 Cri LJ 1721)). If this amenability to the revisional jurisdiction of the High Court is, as held by the Supreme Court in the decisions noted above, what, inter alia, saves the provisions of Section 144, Criminal Procedure Code from constitutional attack, then such amenability cannot be, as a matter of law, made dependent on the fact as to whether the impugned order is still in operation or has spent its force on the day when the High Court proceeds to review the same in the exercise of its revisional power.

3. I have always thought that the revision of an order under Section 144, Criminal Procedure Code is not to depend on the continuity or otherwise of the order on the date of revision and now that the Supreme Court has observed that this revisability is one of the safeguards which saves the section from constitutional attack, I am further fortified in my view that if a party affected by an order under Section 144, Criminal Procedure Code has challenged such order in revision before the High Court within the time allowed by law, the revision is not to be rejected merely on the ground that on the day when such jurisdiction is invoked or exercised, the order has ceased to be in force. There is neither law nor logic behind this view that an order is no longer open to revision if the same has already ceased to be in force and the supposed logic behind such view, if pushed further, would lead to the absurd position that an order of imprisonment is also not open to revision, if the same has spent its force and the accused has served out the imprisonment before he has moved the revisional Court.

4. Both on principle as well as on authority I am, therefore, of the opinion that a revision against an order under S. 144, Criminal Procedure Code is maintainable even though on the date when the revisional jurisdiction is invoked or exercised the order has died out; but, as I have already noted, the fact that the impugned order has already spent its force may properly be taken into consideration by the revisional Court in determining whether interference in revision would be justified or warranted. In this case, as I will presently show, the impugned order suffers from several serious illegalities and infirmities and, therefore, I have no doubt that I should intervene in the exercise of my revisional powers, even though the order has already died out, at least to declare that its birth was illegal and illegitimate.

5. The first infirmity in the order is that it does not state the material facts upon which the order is made. The section in terms requires “a written order stating the material facts” and it is now settled by a long catena of judicial decisions that this requirement is mandatory, non-compliance whereof would vitiate the order. Though the proposition is too well settled to require any citation, yet one may refer to the. Supreme Court decision in Babulal Parate's case (AIR 1961 SC 884) : (1961 (2) Cri LJ 16) to find a reiteration of this principle where (at p. 890) it has been observed as hereunder:—

“We may point out that sub-section (1) of Section 144 requires a Magistrate who makes an order thereunder to state therein the material facts upon which it is based and thus the High Court will have before it relevant material and would be in a position to consider for itself whether that material is adequate or not.”

6. However wide the powers conferred by this section may be, the authority of the Magistrates exercising such powers is neither absolute nor supreme but is subject to supervision and revision by the higher Courts and therefore, the Magistrates in order to act legally and with propriety, must, as observed by Sadasiva Aiyar, J. in S.S Venkataramana v. Emperor (AIR 1919 Mad 1004 at p. 1007) : (1918-19 Cri LJ 56), indicate with reasonable fullness the materials on which they conclude that there was some emergency justifying their actions, so that the higher Courts may check and brake them and put them back on rails when they go off.

7. As already noted, the Supreme Court in the decisions noted above upheld the constitutional validity of the relevant portions of Section 144, Criminal Procedure Code. There can be no doubt, as has also been pointed out in those decisions, that the section puts restrictions on the fundamental rights guaranteed by the Constitution but the restrictions were held by the Supreme Court to be reasonable and within the limits permitted by Article 19 of the Constitution. If a law puts or authorises the putting of restrictions on the fundamental rights guaranteed by the Constitution, the law is void if the restrictions overstep the limit of reasonableness permitted by the Constitution. But even when the restrictions so put or authorised by any law are within the permissible limit of reasonableness, the restrictions must be in strict compliance with reauirements of the law authorising such restrictions and would fail to the extent they fail to comply therewith. Therefore, the restriction put by an order under Section 144, Criminal Procedure Code must strictly comply with the requirements of the provisions of the section.

8. The impugned order has not stated any fact, material or otherwise, but has only noted that the respondent “has submitted a prayer under S. 144. Cr. P.C against the OP to restrain him from interfering with the room under his occupation and possession alleging that the OP in trying to forcibly enter into the said premises has created an apprehension of breach of peace as he is forcing into the premises”. The order, however, nowhere states that the Magistrate was in any way satisfied about the truth of these allegations, whether from any enquiry or any report or otherwise and that the Magistrate was, therefore, of the opinion that there were “sufficient grounds for proceeding under this section and immediate prevention or speedy remedy” was desirable. It is this satisfaction or this formation of opinion which indeed gives the Magistrate jurisdiction to proceed under Section 144, Criminal Procedure Code. If this is lacking, then the order would also be lacking in jurisdiction.

9. The learned Public Prosecutor has, however, urged that it is not necessary that the order on the face of it must recite in express words that the Magistrate was so satisfied and was of such opinion and that if there were statements of facts in the order, which could form the foundation of such satisfaction and opinion, it should be assumed that the Magistrate had the requisite satisfaction and formed the requisite opinion and accordingly proceeded to act under the section. I am inclined to agree with the learned Public Prosecutor that lit the material facts are stated in the order, which in law would justify an order under S. 144, Criminal Procedure Code, the order is not bad merely because the Magistrate has not noted therein in express words that he is satisfied or is of opinion that action under the Section is necessary. But the order must recite facts from and on which such satisfaction and opinion can be inferred and founded. The impugned order is singularly lacking in that respect and cannot, therefore, sustain the impugned proceeding.

10. The second infirmity about the impugned order is that the order is vague and indefinite. An order under Sec. 144, Criminal Procedure Code, which is likely to affect adversely the fundamental or other legal rights of a party cannot be validly effective unless the Magistrate is clear in his mind as to what he has ordered to be done and the party affected can be clear in his mind as to what precisely he is to do or refrain from doing. The material portion of the impugned order dated 4-9-1979 is as follows:

“issue orders under S. 144, Cr. P.C against the O.P restraining such entry or to show cause by 20-9-79.”

11. The sine qua non for an order under S. 144, Criminal Procedure Code is urgency requiring immediate and speedy intervention by way of such an order. The very fact that the Magistrate thought that, as an alternative to his order of injunction, he could allow the opposite party to have a free time for more than a fortnight and to show cause within such period and then could pass the necessary orders after such show cause, goes to show that the Magistrate did not think that any immediate action or speedy remedy was necessary and that being so, the Magistrate was not justified in invoking his extraordinary jurisdiction under this section. As pointed out by the Supreme Court in Madhu Limaye's case ((1970) 3 SCC 746 : AIR 1971 SC 2486 at p. 2496) : (1971 Cri LJ 1721), “the gist of action under Section 144 is the urgency of the situation” and that “the emergency must be sudden and the consequences sufficiently grave”. That apart, such a conditional order, as has been passed by the Magistrate in this case, which might or might not have been made absolute later, is not contemplated under Section 144, Criminal Procedure Code. In declaring a similar order to be beyond the terms of Sec. 144, Criminal Procedure Code it was observed by R.C Mitter, J. in Emperor v. Bhola Giri Mohunt (AIR 1936 Cal 259) : (1936-37 Cri LJ 696) as hereunder:—

“That section contemplates the passing of an absolute order directing any person to abstain from any act or take certain order with certain property in his possession or under his enjoyment. The order can be passed either ex parte in case of emergency under the provisions of sub-section (2) or it may be passed after giving an opportunity to the person against whom an order is proposed to be passed. But the order must be an order which is absolute and definite in terms. S. 144, Cls. (a) and (b) do not contemplate the passing of a conditional order to be made absolute later on. As I read these provisions the order for injunction under S. 144 must be an absolute and definite order, and it must be left to the party to apply for rescinding the order by having recourse to the procedure laid down in sub-ss. (4) and (5) of the said section. In the present case the order is in the following terms:

“……… either to refrain from doing any of the acts set forth above………… or to show cause, if any, against the said order.”

It is not an order which comes within the terms of S. 144, Criminal P.C at all”. (Underlining mine).

12. The third infirmity is that if Section 144, Criminal Procedure Code is allowed to be resorted to for the purpose for which it has been used in this case, it would make the provisions of this section violative of the provisions of Article 19 of the Constitution. That Article, as is well known, while bestowing some of the cherished rights to freedom in Cl. (1), has authorised existing as well as future laws to impose reasonable restrictions on such rights to freedom in the interest of, inter alia, ‘public order’, ‘general public’, ‘security of the State’, etc. The Criminal Procedure Code, 1898, being an existing law within the meaning of Article 19, as defined in Article 366(10), the restriction on such rights as envisaged by Sec. 144, must not only be reasonable but also be in the interest of “public order” or the “general public” or any of the matters mentioned in clauses (2) to (6) of Article 19

13. Whatever might have been intended by the framers who framed or the Legislature which legislated the section, the apparent wide amplitude of this section must be deemed to have been curtailed and circumscribed by the overriding limits engrafted in Article 19, if the section is to continue as a valid piece of law after the commencement of the Constitution. In order to survive the provisions of the Constitution, particularly Article 13 and Article 372 thereof, the provisions of Section 144, Criminal Procedure Code must be construed in the light of the provisions of the Constitution in Clauses (2) to (6) of Article 19 and when so construed, the conclusion would be inevitable that the obstruction, annoyance or injury or any other danger or disturbance sought to be prevented “must” as indicated by the Supreme Court in the Madhu Limave's case ((1970) 3 SCC 746 : AIR 1971 SC 2486) : (1971 Cri LJ 1721), “assume sufficiently grave proportions to bring the matter within the interests of public order” or general public or any other matter specified in clauses (2) to (6) of Article 19.

14. The material portion of the impugned order has been quoted hereinbefore wherein the alleged forcible entry by the petitioner before me in the room alleged to be in the occupation and possession of the respondent No. 2 was sought to be restrained. Assuming the allegations to be true, there is nothing in the impugned order or anywhere in the record to show that such entry by the petitioner in the room in the possession of the respondent was likely to assume such “grave proportions to bring the matter within the interests of public order” or the general public. The impugned order aiming to affect and restrict the right of the petitioner to move freely as conferred by sub-clause (d) of Art. 19(1), can be sustained only if it was passed in the interest of the general public or of any Scheduled Tribe as provided in clause (5) of Article 19. In the absence of any such indication, the user of the provisions of Section 144, Criminal Procedure Code by the Magistrate was improper. The Supreme Court in Babulal Parate's case (AIR 1961 SC 884) : (1961 (2) Cri LJ 16) and Madhu Limaye's case ((1970) 3 SCC 746 : AIR 1971 SC 2486) : (1971 Cri LJ 1721) was fully alive to the fact that this Section 144 could be improperly applied by those who are not alive to the provision of the Constitution and observed ((1970) 3 SCC 746 : AIR 1971 SC 2486 at p. 2497) : (1971 Cri LJ 1721) that “Section 144 is not unconstitutional if properly applied”. It is, therefore, clear that when improperly applied, what shall be struck down is such improper application and not the provisions of the section. The impugned order having already come to an end by efflux of time need not be, as it obviously cannot be, formally quashed or set aside. But for the reasons noted hereinbefore, I must allow the revisional application and declare that the impugned proceeding and order under Section 144, Criminal Procedure Code were bad and without jurisdiction.

15. Application allowed.