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Shiv Dutt Sharma Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Revision No. 460 of 1972
Judge
Reported in1972WLN825
AppellantShiv Dutt Sharma
RespondentState of Rajasthan
Cases ReferredIn Brindaban Shaw v. Narendra Nath
Excerpt:
.....144--order--nature of--magistrate not to pass mandatory order.;only a restrictive order can be passed by a magistrate, section 144 does not authorise a magistrate to make a mandatory or a positive order directing a person to do a particular act or direct a person to vacate his residence and take his quarters in different place. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean..........and other boys. they were taken out from their rooms. in the meantime shri tara prakash joshi, city magistrate, jaipur city, told the wardens of the hostel not to intervene. the students were then taken to the r.a.c. lines. mr. tara prakash joshi asked the petitioner to go home. after about 2 weeks the petitioner was released and an order under section 144, cr. p.c. was passed by mr. tara prkash joshi, city magistrate, jaipur city. the petitioner submits that this order is ultra-vires under section 144, cr. p.c. and that section 144 of the code has been misused by learned city magistrate in getting the hostel vacated. the petitioner, therefore, prays that the impugned order be set aside.2. i have heard mr. g.m. lodha for the petitioner and the additional advocate general on behalf of.....
Judgment:

L.S. Mehta, J.

1. This is a revision petition filed by Shiv Dutt Sharma, challenging the order of the City Magistrate, Jaipur city, dated September 3, 1972, passed under Section 144, Cr. P.C. The petitioner is a student of S.M.S. Medical College, Jaipur. He is living in the Senior Boys' Hostel, Room No. 39, having deposited his Hostel fee from 1st July to 31st December,1972. The students of the Medical College submitted a charter of their demands to the Government for solving their unemployment problem. They also made a peaceful demonstration on August 16, 1972 outside the Rajasthan Legislative Assembly. In order to press their demand they wanted to meet the Health Minister, but when they failed to do so, they staged demonstration outside his residence in a peaceful manner for sometime, but the police force removed them. The State of Rajasthan, according to the petitioner, started unprecedented repressive measures to suppress their demand for employment. During the night intervening September 2 and 3, 1972, the petitioner was sleeping in the room of his hostel at Jaipur. The door of his room was got opened and when he came out he found several R.A.C. Jawans with lathis and 'Dandas' in their hands. They pounced upon the petitioner and other boys. They were taken out from their rooms. In the meantime Shri Tara Prakash Joshi, City Magistrate, Jaipur City, told the wardens of the hostel not to intervene. The students were then taken to the R.A.C. lines. Mr. Tara Prakash Joshi asked the petitioner to go home. After about 2 weeks the petitioner was released and an order under Section 144, Cr. P.C. was passed by Mr. Tara Prkash Joshi, City Magistrate, Jaipur City. The petitioner submits that this order is ultra-vires under Section 144, Cr. P.C. and that Section 144 of the Code has been misused by learned City Magistrate in getting the hostel vacated. The petitioner, therefore, prays that the impugned order be set aside.

2. I have heard Mr. G.M. Lodha for the petitioner and the Additional Advocate General on behalf of the State of Rajasthan.

3. In this case the first point that has been raised on behalf of the petitioner is that orders passed under Section 144, Cr. P.C. are judicial orders and they are subject to judicial review by the High Court. As against this, learned Additional Advocate General has submitted that the High court should in a matter like this rarely interfere in revision under Section 439, Cr. P.C. The High Court should, counsel adds, be loath to reject the opinion of the Magistrate responsible for the maintenance of the peace of the particular area. In support of his contention he has cited Venkataramana v. Emperor AIR 1919 Mad 1004, wherein Sadasiva Aiyer J. has observed:

The High Court would rarely interfere in revision with an order under Section 144, Criminal P.C.

Learned Additional Advocate General further urged that the petitioner should have first approached the City Magistrate, Jaipur, or the District Magistrate, Jaipur, under Sub-s (4) of Section 144, Cr. P.C. These Magistrates have got ample power to rescind or alter the orders passed under Section 144, Cr. P.C. The Madras decision (supra) was given prior to the amendment of Section 144 of the Code by the Code of Criminal Procedure (Amendment) Act, 1923. There is a direct decision on the point reported in Saturhan Das v. Mukhan Das AIR 1921 Pat 468. It has been held therein that the jurisdiction conferred by Section 144(4), Cr. P.C. upon a Magistrate to rescind or alter an order made under the section by himself or by any Magistrate subordinate to him or by his predecessor-in-Office is neither the appellate, nor revisional jurisdiction. It is a special jurisdiction conferred by special provision of the statute. Therefore, the argument that the revision petition cannot be filed without first approaching the concerned Magistrate is not tenable. A reference in this connection is made to Pitchai v. Md. Khan AIR 1932 Mad 720, in which Vaish J. held that a revision petition against an order Section 144, Cr. P.C. can be filed to High Court though it should not ordinarily be so filed in the first instance. The matter also received the consideration of Lord Williams and McNair JJ., in Surendra Nath v. Gostha Behari AIR 1934 Cal 139 The relevant observation in that judgment runs as under:

Where an order under Section 144(2) is passed ex-part ((SIC)) the proper remedy of the aggrieved party is to apply to District Magistrate under Section 144(4) to have the prohibitory order set aside; but where the Magistrate postpones the case and the matter has to be disposed of expeditiously, such party can go to High Court under this Section 439:

The point in issue was also adjudicated by the distinguished Judge, Beaumont C J. in re. Ardeshir Phirozehaw Mursban AIR 1940 Bom 42. It has been categorically laid down in that case that the fact that the petitioner did not avail himself of the remedy under Section 144(4), Cr. P.C. is no ground for refusal to interfere in revision by the High Court. There is also a Full Bench decision of the Lahore High Court in Editor, Tribune v. Emperor AIR 1942 Lah 171. Therein Young C.J. speaking for the Court said:

The opinion of a District Magistrate, expressed under Section 144, although entitled to great weight, is not absolute and cannot interfere with the right of the High Court under the revisional sections of the Criminal Procedure Code to interfere with the order or set it aside.... The right of the High Court to interfere with such orders has been recognised by all the High Courts in this country.

4. Thus, propriety of the order as well as its legality can be considered by the High Court in revision though in examining the propriety of an order the High Court undoubtedly must give due weight to the opinion of the concerned Magistrate, who is the man on the spot and responsible for the maintenance of public peace in the area. In support of this proposition I place reliance on a decision of their Lordships of the Supreme Court in Babulal Parate v. State of Maharashtra : 1961CriLJ16 wherein it has no doubt been said that it was open to the parties concerned to move the District Magistrate and apply for modification of the order by granting them exemption from the restriction placed by the order. But in this very judgment in head note C. it has been made clear;

Again, though no appeal has been provided in the Code against the Magistrate's order under Section 144, the High Court has power under Section 435 read with Section 439 of the Code to entertain an application for the revision of such an order

5. It is thus manifest that the powers used under Section 144, Cr. P.C. have to be used in a judicial manner and the remedy of judicial review does exist. Section 144, Criminal Procedure Code is concerned with freeing society from the menace of serious disturbances of a grave character. It is not an ordinary power flowing from administration, but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power and in the extent of its application. There is, therefore, no manner of doubt that the argument that this Court should not entertain the revision petition must be rejected. I should not, however, be understood in any way encouraging direct applications to this Court when there is some Magistrate who can alter or rescind the order. But, at the same time, I must make it clear that in a suitable case like this the High Court has ample power under Section 435, read with Section 439 of the Code to entertain an application for the judicial scrutiny of an order under Section 144, Cr. P.C.

6. The next point raised on behalf of the petitioner is that before art order under Section 144, Cr. P.C. is passed, the Magistrate has to determine that there was intimate connection between the act prohibited and the danger apprehended. In this case it is not clear from the order itself that the students residing in the Medical College Hostels resorted to any violent activity within the premises of the Hostels Learned Additional Advocate General submitted that the students resorted to several unlawful and violent activities in the city of Jaipur. In the reply filed on behalf of the State it is further mentioned that some students of the Colleges other than Medical College, Jaipur also came to the Medical College Hostels, Jaipur, to instigate the students. These facts, counsel adds, constitute connection between the act prohibited and the danger apprehended. The criticism is that an act prohibited Section 144, Cr. P.C.; must only be so prohibited if it is likely to prevent obstruction etc. or disturbance of public tranquillity. This likelihood or tendency must be a reasonable or an approximate one. It is not enough to say that by expressing several possibilities one after the other it is possible to establish a connection between the cause and effect between the act prohibited and the disturbance of the public tranquility. That action must not be merely speculative or distant where there are no special circumstances and the matter is one of general impression, the absence or nearness or reasonable connection between the prohibited act and the supposed danger to public tranquillity will be a ground upon which this Court is bound to act. The order of the Magistrate shows that the students resorted to certain activities outside the hostels as a result thereof disturbance was likely to occur in the hostels is only a distant and possible connection and not a near and probable one. The City Magistrate only passed a cryptic order and it is difficult to decide from the same if he at all applied his mind on the facts of case. While passing an order under Section 144, Cr. P.C., the Magistrate should have given sufficient indications in the order itself, in order to satisfy the mind of the revisional court, that his order was based an all relevant considerations see Purna Chandra v. Shogat Ali : AIR1960Cal715 . It has been laid down by Young C.J. in Editor, Tribune's case (supra), that to justify an order under Section 144. Cr. P.C., there must be a casual connection between the act prohibited and the danger apprehended to prevent which the order in passed. The gist of action under Section 144 of the Code is to meet urgency of the situation. The emergency must be sudden and the consequence must be sufficiently serious. That being so, the powers under Section 144, Cr. P.C., have to be exercised with abundant caution. The Magistrate has got to set out all the material in his order, the reason being that the public should know why their rights are to be suspended and as has been observed in Thakin Aung Bala v. Dist. Magistrate, Rangoon AIR 1939 Rang 181, 'failure to do so is fatal to the validity of the order.' The Magistrate has got to bear in mind that every citizen has a right to ventilate his grievance either in public or private and ask for redress and this right cannot be curtailed so long as it is exercised in a lawful manner. It is an illegal assumption of power to issue an order under Section 144, Cr. P.C. on a pretended apprehension of a breach of the peace. In this case the Magistrates has not set out all the material facts as to how he apprehended that the Medical College Hostels, Jaipur, were the centres of all the unlawful activities likely to result in serious disturbances or breach of public peace. His failure to do so is undoubtedly fatal to the validity of the order.

7. Learned Counsel for the petitioner then submitted that the order passed under Section 144, Cr. P.C. is not commensurate with the situation and the circumstances of the case. Powers under Section 144, Cr. P.C. have to be exercised in the words of their Lordships of the Supreme Court in Madhu Limaye v. S.D.M. Monghyr AIR 1971 SC 2481 are 'directed against those who attempt to imperil public safety and health' Learned Additional Advocate General, on the other hand, urged that the action taken by learned City Magistrate, Jaipur City, is in consonance with the provisions of Section 144 Cr. P.C. keeping in view the undesirable activities of the hostlers. The Legislature by enacting Section 144, Cr. P.C., has conferred very large powers on the Magistrates who have to deal with emergent or urgent cases of apprehended danger. The larger is the power, the greater is the necessity to be cautious about its exercise. The Magistrate has to bear in mind the following principles before promulgating an order under Section 144, Cr. P.C. -

1. courts, civil as well as criminal, exist for the protection of rights and, therefore, the authority of a Magistrate should ordinarily be exercised in defence of rights rather than in their suppression,

2. when an order in suppression of lawful rights has to be made it ought not to be made unless the Magistrate considers that other action that he is competent to take is not likely to be effective, and

3. the order, if made, should never be disproportionate to but it should always be, as far as possible, commensurate with the exigencies of any particular situation: see Port Commrs. Calcutta v. Jogendra AIR 1933 Cal 348

Sometimes there may be some cases when the Magistrate may feel called upon to restrain the person from the liberty of exercise of his legal right and the Magistrate is perfectly competent to take such a course as may, in his opinion, be necessary for the immediate prevention or speedy remedy. In this case, in so far as the materials themselves are concerned, I am clearly of the opinion that they were not sufficient to justify an order of the kind made on Sept. 3, 1972, and that too at 4.30 a.m. It is true that there were some allegations before the Magistrate that there was apprehension of breach of the peace, but such allegations evidently were not established. There is nothing in the order that there was the possibility of a serious breach of the peace in the hostels or that there was grave emergency. The Magistrate has illustrated in the order that in the course of agitation students broke down the barricades of the Assembly and forced their entry. They also forced the internees and House Surgeons to strike and staged a 'Dharna' at the residence of the Health Minister. They further started picketing of the S.M.S. Hospital, Jaipur and did not allow junior Doctors to enter and closed the gates. But he has not specifically mentioned any unlawful or illegal activities of the students in the hostels themselves in the order itself. Thus, there was no basis for the order of the kind passed under Section 144, Cr. P.C. and, therefore, I am unable to hold that the impugned order was commensurate with the exigencies of the situation.

8. Lastly, it was argued by learned Counsel for the petitioner that the eviction order, directing the medical students to leave the hostels, is mandatory in nature and not prohibitory and, therefore, the order in question is not sustainable, Section 144, Cr. P.C., contemplates two kinds of orders:

(1) order directing a person to abstain from a certain act, and

(2) order directing a person to take certain order with property in his possession or management.

A person can be directed to abstain from doing any act that can be done physically. An order of this description should be a definite order to abstain from a certain act. It should be addressed to a definite person. The section permits only a restrictive order and it does not authorise a Magistrate to make a positive or mandatory order directing a particular act. The Magistrate under Section 144 Cr. P.C. has no power to direct a party to vacate his residence or house or hostel and take quarters at a different place. In this connection, a reference is made In the matter of the petition of Bireshwar Basu Majumdar and Ors. 2 CWN (1897-98) 70. In that case Sub-Divisional Magistrate, by an order purporting to have been made under Section 144, Cr. P.C. directed certain prostitutes and their Zamindars, under whom they held the land to remove the houses of the former from a particular site within 24 hours and to take up their quarters on the opposite side of a railway line on the ground that the visitors to the prostitutes have to cross the railway lines and thereby their lives would be endangered and for the disobedience of the said order directed prosecution under Section 188, I.P.C. A Division Bench of the Calcutta High Court observed that Section 144, Cr. P.C. was not intended to apply to such cases and the orders referred to were ultra vires. There is another case reported in Thakin Ba Thoung v. Emperor AIR 1934 Ran 184. Therein it has been observed by Das J. that a Magistrate has no jurisdiction to direct a person to abstain from residing in any place where he is at the time the order is passed. In Brindaban Shaw v. Narendra Nath AIR 1948 Cal 192 the petitioner was the owner of a certain house, situate in the city of Calcutta. The structures were said to be in a dilapidated condition. The Calcutta Corporation served a notice upon the petitioner directing him to pull down the structures within 7 days and the notice was also served upon the tenants, who were in possession of the property. The petitioner said that he had called upon his tenants to vacate the premises but they refused to do so. He then moved the criminal court under Section 144, Cr. P.C., for an order calling upon the tenants to vacate the premises. It was observed by Harries C.J. that the proceedings under Section 144 of the Code were wholly misconceived. Under Section 144 a Magistrate can only direct a person to abstain from a certain place or to take certain property in his possession or under his management, but he is not entitled to pass a mandatory order of the nature under Section 144, Criminal Procedure Code.

9. The above authorities make it abundantly clear that only a restrictive order can be passed by a Magistrate. Section 144 does not authorise a Magistrate to make a mandatory or a positive order directing a person to do a particular act or direct a person to vacate his residence and take his quarters in a different place.

10. In the light of the above discussion, the order passed by learned City Magistrate Jaipur City, on September 3, 1972, under Section 144, Cr. P.C., directing the petitioner to vacate the hostel along with his belongings forth-with is ultra vires and is set aside. It will be open to the learned City Magistrate to take such other preventive action against the against the person concerned against whom he considers such action necessary and justified by the material which he may have before him.


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