Orissa High Court
Swami Adhokshajananda Tirthji vs State Of Orissa And Ors. on 4 September, 2000
Equivalent citations: 2000(II)OLR666
Author: Pradipta Ray
Bench: Pradipta Ray
JUDGMENT Pradipta Ray, J.
1. By this writ petition Sri Swami Adhokshajananda Tirthji, the writ petitioner herein, has assailed an order dated July 15, 2000 passed by the Sub-divisional Executive Magistrate, Puri under Section 144 of the Criminal Procedure Code (in short, "Cr.P.C.") directing the police to prohibit the presence and movement of the writ petitioner within local limits of jurisdiction of the Court of the Sub-divisional Executive Magistrate, Puri and the conditions contained in the subsequent order dated July 17, 2000 passed by the Sub-divisional Judicial Magistrate, Puri granting bail to the petitioner in G.R.Case No. 760 of 2000.
2. The relevant facts as stated in the writ petition in short are :
The petitioner claims that he is the son of Guruswami Niranjan Dev Tirth, who was the Sankaracharya of Puri Govardhan Pitha before the present recognised Sankaracharya Swami Nischalananda Saraswati. The petitioner also claims that he has the legitimate right to become Sankaracharya of Govardhan Pith in place of the present recognised Sankaracharya. It also appears that the petitioner has been making such claim in different places in the country. Sri P.K. Mohapatra, the present Collector and District Magistrate, Puri took the cause of the recognised Sankaracharya and on September 5, 1999 wrote an unusual letter to the Commissioner of Police, Baroda (Annexure-2) making certain unfounded derogatory remarks about the petitioner and requested him to arrest the petitioner and to book him under relevant provisions of the Indian Penal Code. The petitioner has alleged that the present Collector bears malice against the petitioner and he is mainly instrumental in preventing him from coming to and residing at Puri. In January, 2000 the petitioner wanted to come to Puri to move the appropriate legal forum for establishing his claim as Sankaracharya, but by an order dated January 21, 2000 under Section 144, Cr.P.C. the Sub-divisional Executive Magistrate, Puri directed the local police to prohibit the petitioner from coming to Puri Municipal area and to place him outside the area of Puri Municipality within six hours of the said order.
On June 30, 2000 another prohibitory order under Section 144, Cr.P.C. was issued prohibiting the petitioner from coming to Puri during the last Rath Yatra of Lord Jagannath. On July 15, 2000 at about 1.30 p.m. the petitioner arrived at Bhubaneswar Airport by Air from Delhi and proceeded to Puri. At about 5.30 p.m. the petitioner came to Puri and went to his place of stay being a private house known as 'Pujya Puja' belonging to one of his disciples. The petitioner did not at all go out of his place of stay. In the same evening a Misc. Case under Section 144, Cr.P.C. being Misc. Case No. 305/2000 was initiated by the Sub-divisional Executive Magistrate (hereinafter referred to as 'Magistrate') on the basis of a complaint being non-FIR No. 162, dated July 15, 2000 lodged by Puri Town Police Station and the Magistrate issued the impugned order, operative part of which is quoted below :
"Accordingly, I Sri Govind Chandra Das, O.A.S. (I), Sub-divisional Magistrate, Puri do hereby require and direct the local police to prohibit the presence and movement of the second party under Section 144, CrJP.C. within the local limits of jurisdiction of this Court immediately after service of notice of second party."
On the basis of an allegation that the petitioner refused to accept the service of the order under Section 144, Cr.P.C. tore it and threw it away, the local police started a criminal proceeding under Sections 173, 186, 188 and 204 of the Indian Penal Code against the petitioner on July 17, 2000, arrested him at about 6.30 p.m. on the said date and produced him before the Sub-divisional Judicial Magistrate (in short 'Judicial Magistrate'). The Judicial Magistrate released the petitioner on bail on several conditions including the condition that "he should leave Puri town till submission of F.F. for the ends of natural justice, peace and tranquillity of general public." The police took the petitioner outside the Puri town and left him at a place called Gopalpur on Puri-Konark marine drive.
3. The petitioner initially moved this Court in its criminal jurisdiction questioning the legality of the conditions imposed by the Judicial Magistrate in his order dated July 17, 2000 granting him bail. Subsequently the petitioner has filed this writ petition and on legal advice he withdrew the application filed in the criminal jurisdiction in order to proceed with the present writ application.
4. Two separate counter affidavits - one by opp. parties 2 and 5 and another by opp. parties 3 and 4 - have been filed. In the said two affidavits the circumstances which according to the said opp. parties led to the formation of opinion and imposition of prohibition have been narrated. The said opp. parties have referred to some past activities of the petitioner elsewhere in the country, his previous attempts to come to Puri, previous complaints and consequent prohibitory orders issued against him. It has been stated that during Nabakalebar of Lord Jagannath the petitioner came to Puri, hurt the sentiment of the people of Orissa by his public speeches and created disturbances in Puri. However, no corroborative material has been disclosed or annexed in support of the said allegation. Referring to a caption under a Newspaper photograph it has been alleged that the petitioner was introducing even himself as Swami Nischalananda Ji. The said opp. parties have also annexed a Hindu leaflet which was allegedly distributed on July 14, 2000, the day before the petitioner's arrival at Puri. According to the opp. parties, on July 14, 2000 a public petition was presented before the Collector. Puri and the Superintendent of Police, Puri urging the authorities to take preventive action against the petitioner and on July 15, 2000 Sri Rajeev Misra, Secretary to the present recognised Sankaracharya lodged a written complaint with the police. The said opp. parties have annexed, among others, two Station Diary Entries recorded on July 15, 2000 in Town Police Station, Puri, the said public petition dated July 14, 2000, the complaint lodged by Sri Rajeev Misra, the Hindi leaflet, some Newspaper reports and photographs and the non-FIR No. 162 dated July 15, 2000.
5. During hearing of this writ petition two groups of persons filed two applications for being added as opp. parties to oppose the writ petition. By a separate order the said applications have been rejected. However, learned Senior Advocates of the said two groups of persons were allowed to make submissions on the question of law involved in the present writ petition.
6. Several objections have been raised on the maintainability of the writ petition. It has been submitted that two different orders passed in two different proceedings having been challenged, this writ petition is not maintainable. Mr. G. Rath, learned Senior Advocate for the petitioner has made it clear that in the present writ petition the petitioner confines his challenge to the order passed by the Executive Magistrate and reserves his right to move separately against the order passed by the Judicial Magistrate, if necessary. Accordingly, this Court's consideration is kept confined to the legality and propriety of the order dated July 15, 2000 passed by the Executive Magistrate under Section 144, Cr.P.C.
7. It has been submitted that the present application is barred by general principles of res judicata inasmuch as the petitioner's application before the High Court in its criminal revisional jurisdiction has been dismissed as withdrawn and that the Supreme Court earlier rejected the petitioner's Special Leave Petition against the order dated January 20, 2000 passed by the Executive Magistrate under Section 144, Cr.P.C. Principle of res judicata applies when there is an adjudication of the same or similar issue in an earlier proceeding between the parties or persons claiming under them. The petitioner himself prayed for withdrawal of his application before the criminal jurisdiction and the Hon'ble Judge simply allowed the said prayer without determining any of the issues involved. The use of the expression "dismissed as withdrawn" has no special significance inasmuch as the implication is that petitioner has been allowed to withdraw the application.
The Special Leave petition against the order dated January 20, 2000 was dismissed as the order impugned therein ceased to exist because of efflux of time. There was no adjudication on merit on any of the questions raised therein. Accordingly, this Court is unable to accept this submission that the present writ petition is barred by the general principle of res judicata.
8. Mr. A. B. Misra, learned counsel has submitted that under Sub-Section (5) of Section 144, Cr.P.C. the petitioner has the right to approach the same Magistrate for re-consideration or modification of the order and in view of the existence of an alternative remedy for consideration of his grievance, the present writ application should not be entertained. Availability of alternative remedy is no bar to entertaining a writ application. It is just a rule of expediency. In any event the jurisdiction under Section 144 (5), Cr.P.C. is in the nature of review and discretionary. The opportunity of approaching the same Magistrate for rescinding an order cannot be treated as an effective alternative remedy so as to prevent entertaining a writ application. Existence of power of review is not usually regarded as an alternative remedy. In case of Gulam Abbas (supra) an order under Section 144, Cr.P.C. has been.held to be an executive order and amenable to jurisdiction under Article 226 of the Constitution of India. The Magistrate's power to reconsider under Section 144(5), Cr.P.C. cannot be treated as an efficacious alternative remedy.
9. The writ petitioner has assailed the impugned order under Section 144, Cr.P.C. mainly on the following grounds :
(i) The apprehension recorded in the impugned order is wholly imaginary, without basis, partisan and not bona fide.
(ii) The impugned order has been passed at the behest of Collector. Puri who has a bias and motive against the petitioner.
(iii) Assuming that the apprehension as recorded is reasonable the restriction imposed is disproportionate to the apprehension expressed.
(iv) The impugned order was passed ex parte without giving any opportunity of hearing to the petitioner. Even after the impugned order no post-decision opportunity of hearing was given. The impugned order is thus violative of the accepted principles of natural justice.
(v) Admittedly, whenever the petitioner wants to come to Puri prohibitory order under Section 144, Cr.P.C. is being invariably issued to prevent him from staying at Puri and such successive orders under Section 144, Cr.P.C. is not permissible and the same shows malice on the part of the administration towards the petitioner.
10. Principles relating to the nature of the power under Section 144, Cr.P.C. and exercise thereof have been settled. As far back as in 1883 when India was under colonial rule and there was no Constitution guaranteeing fundamental rights, a Full Bench of Madras High Court observed :
"I must nevertheless observe that this power (to, suspend the exercise of legal rights on being satisfied about the existence of an emergency) is extraordinary and that the Magistrate should resort to it only when he is satisfied that other powers with which he is entrusted are insufficient. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the persons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace."
The said observations of the Madras High Court was approvingly quoted by the Supreme Court by Gulam Abbas v. State of U.P. and Ors. reported in AIR 1981 SC 2198.
In 1932, Calcutta High Court in Francis Duke Cobridge Sumner, Offg. Deputy Secretary, Port Commissioner, Calcutta and Ors. v. Jogendra Kumar Roy and Anr reported in AIR 1933 Calcutta 348, observed :
".......Now there can be no doubt or dispute that the legislature by Section 144 of the Code has conferred very large powers upon Magistrates who have to deal with urgent cases of nuisance or apprehended danger.....
xx xx xx The larger is the power, the greater is the necessity to be cautious about its exercise. The statute itself has provided a safeguard in the shape of a time limit. Judicial decisions have also laid down certain principles which have to be borne in mind, and of these only a few may be mentioned here : 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; when an order in suppression of lawful rights have 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 the order, if made, should never be disproportionate to but should always be, as far as possible, commensurate with the exigencies of any particular situation."
In Gulam Abbas (supra) the Supreme Court has explained the nature of the power under Section 144, Cr.P.C. and has laid down certain salient principles required to be observed at the time of exercise of the powers. The Supreme Court has said therein :
"Preservation of the public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive magistracy enabling it to perform that function effectively during emergent situations and as such it may become necessary for the Executive Magistrate to override temporarily private rights and in a given situation the power must extend to restraining individuals from doing acts perfectly lawful in themselves, for, it is obvious that when there is a conflict between the public interest and private rights the former must prevail. It is further well settled that the Section does not confer any power on the Executive Magistrate to adjudicate or decide disputes of civil nature or questions of title to properties or entitlements to rights but at the same time in cases where such disputes or titles or entitlements to rights have already been adjudicated and have become the subject-matter of judicial pronouncements and decrees of Civil Courts of competent jurisdiction then in the exercise of his power under Section 144 he must have due regard to such established rights and subject of course to the paramount consideration of maintenance of public peace and tranquillity the exercise of power must be in aid of those rights and against those who interfere with the lawful exercise thereof and even in cases where there are no declared or established rights the power should not be exercised in a manner that would give material advantage to one party to the dispute over the other but in a fair manner ordinarily in defence of legal rights, if there be such and the lawful exercise thereof rather than in suppressing them. In other words, the Magistrate's action should be directed against the wrong-doer rather than the wronged. Furthermore, it would not be a proper exercise of discretion on the part of the Executive Magistrate to interfere with the lawful exercise of the right by a party on a consideration that those who threaten to interfere constitute a large majority and it would be more convenient for the administration to impose restrictions which would affect only a minor Section of the community rather than prevent a larger Section more vociferous and militant."
The Supreme Court has also unequivocally disapproved passing of successive orders under Section 144, Cr.P.C.
In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta and Anr., reported in AIR 1984 SC 51 the Supreme Court has referred to various decisions of different High Courts and concluded:
"We have no doubt that the ratio of these decisions represents a correct statement of the legal position. The proviso to Sub-Section (4) of Section 144 which gives the State Government jurisdiction to extend the prohibitory order for a maximum period of six months beyond the life of the order made by the Magistrate is clearly indicative of the position that Parliament never intended the life of an order under Section 144 of the Code to remain in force beyond two months when made by a Magistrate. The scheme of that Section does not contemplate repetitive orders and in case the situation so warrants, steps have to be taken under other provisions of the law such as Section 107 or Section 145 of the Code when individual disputes are raised and to meet a situation such as here, there are provisions to be found in the Police Act. If repetitive orders are made it would clearly amount to abuse of the power conferred by Section 144 of the Code.
xx xx xx Thus the clear and definite view of this Court is that an order under Section 144 of the Code is not intended to be either permanent or semi-permanent in character. The consensus of judicial opinion in the High Courts of the country is thus in accordance with the view expressed by this Court."
The Supreme Court in Smt. Maneka Gandhi v. Union of India and Anr. reported in AIR 1978 SC 597 has emphasised the requirement of fair play in action and application of the principles of natural justice even in administrative actions. It has been laid down therein that if the situation does not permit a pre-decision opportunity of hearing, such opportunity is to be given at the earliest post-decision stage.
11. It is thus settled that power under Section 144, Cr.P.C. is an extraordinary power which can be exercised even ex parte in an emergency on the basis of real apprehension, but restriction or prohibition should be confined to what is necessary to prevent the apprehended threat. Both fundamental and legal rights can be suspended temporarily if public interest so demands but such prohibition or restriction should not exceed reasonable limit. Ordinarily existing rights, if any, are to be respected and prohibition under Section 144, Cr.P.C. should be against violation of existing rights at the given moment.
12. The opp. parties have filed counter affidavits in which they have disclosed some materials including a petition by some local residents stated to have been submitted to the Collector, Puri on July 14, 2000. In the counters certain allegations have been made which do not find place in the impugned order. In order to examine the legality and propriety of an order impugned before a Court of law, it is necessary to bear in mind the principle laid down by the Supreme Court in Commissioner of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16, and reiterated in Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and others, reported in AIR 1978 SC 851. The Supreme Court has laid down in Mohinder Singh Gill's case (supra) that :
"The second ,equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji.
'Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself.' Orders are not like old wine becoming better as they grow older."
13. In the impugned order the Executive Magistrate has mentioned non-FIR No. 162, Dated July 15, 2000 submitted by Town Police Station, Puri as the basis of formation of his opinion. In the recital of the order the Magistrate has further referred to two earlier orders dated January 21, 2000 and June 30, 2000 passed under Section" 144, Cr.P.C. No other document, police report or public complaint has been specifically referred to or mentioned in the order. In non-FIR No. 162 the police has referred to a complaint lodged by one Ramesh Panchha before prohibitory order dated January 31, 2000 was issued and to previous orders under Section 144, Cr.P.C. There is no whisper about any public petition dated July 14, 2000. For the first time in the counter affidavit it has been alleged that on July 14. 2000 a large number of people gathered before the Collector, Puri and submitted a memorandum. In the counter affidavit affirmed on behalf of opp. parties 3 and 4 Station Diary Entries Nos. 278 and 281 dated July 15, 2000 of Puri Town Police Station have been referred to. Station Diaries Nos. 278 and 281 dated July 15, 2000 do not contain any reference to the alleged mass memorandum dated July 14, 2000. In non-FIR No. 162, dated July 15, 2000 submitted before the Magistrate reference was made to the earlier non-FIR No. 153 of 2000 dated June 28, 2000, but there is no whisper about the Station Diary Nos. 278 or 281 dated July 15, 2000 or the alleged mass memorandum dated July 14, 2000. On June 30, 2000 an order under Section 144, Cr.P.C. was issued even before the petitioner's arrival at Puri and he was thereby prevented from entering Puri. If such a mass memorandum was really submitted on July 14, 2000 an order under Section 144, Cr.P.C. would have been issued prohibiting his entry into Puri as on previous occasion. In these circumstances, a reasonable suspicion arises whether any such memorandum was submitted on July 14, 2000 as alleged. In any event, it is clear that the said public petition, if any, was not placed before the Executive Magistrate and the same was not considered for the purpose of forming the necessary opinion.
14. In the written report submitted by the Officer-in-charge, Town Police Station, Puri apprehensions expressed are :
(i) The members of Aditya Bahini are apprehending that the 2nd party member Sri Adhokshyajananda may enter into Gobardhan Pitha to stake his claim over the Pitha which may lead to serious breach of peace with blood-shed between the two parties.
(ii) The very presence of Swami Adhokshyajananda is an irritant to the general public of Puri and an atmosphere of sharp hostility and resentment has been created among the public following his visit once again in spite of being restrained by prohibitory orders on earlier.occasions.
(iii) His presence and movement in Puri including his likely visit to Sri Jagannath Temple and likely holding of meeting or press conference staking his claim as the Sankaracharya of Gobardhan Pitha, Puri would certainly lead to serious breach of peace.
15. The petitioner arrived at Puri at about 5.30 p.m. In the first Station Diary Entry No. 278 recorded at 9.30 p.m. on July 15, 2000 no incident or overt act on the part of the petitioner was mentioned. In the third paragraph of the Diary it was recorded :
"His present attempt to come to Puri is a sort of challenge to the general Hindu Public of Puri, who are very much attached to Gobardhan Pitha Sankaracharya Math and also a challenge to the Administration. His presence and continuance in Puri will definitely lead to serious problem and breach of peace and there would be unnecessary disturbance in Jagannath Temple which he is likely to visit. He is trying to collect people to enter into Math with mala fide intention."
In the 2nd Station Diary Entry No. 281 dated July 15, 2000 no new fact found place. It recorded the apprehension of Aditya Bahini and general grievance of the general public of Puri without disclosing any basis thereof. The said Diary recorded an apprehension that very presence of the petitioner "is an irritant to the general public or Puri".
16. As already stated, the impugned order does not refer to any document other than the non-FIR No. 162 dated July 15, 2000 and the earlier orders under Section 144, Cr.P.C. issued against the petitioner. In the impugned order the Magistrate practically reproduced the apprehension expressed in the said police complaint being non-FIR No. 162. The impugned order does not show that the other documents annexed to the counters were forwarded to or placed before him. The Magistrate recorded the following satisfaction :
"Hence I am satisfied with the report of the O.I.C., Town P.S., Puri that there will be serious breach of peace and blood-shed between the 2nd party and the supporters of Swamy Nischalananda Saraswati, Sankaracharya of Gobardhana Pitha, Puri and disturbance of public tranquillity within the local limits of jurisdiction of this Court and action under Section Cr.P.C. against the 2nd party imposing the reasonable restriction on his free movement is necessary in the interest of general public.
In view of emergent nature of the case and paucity of time I am satisfied that an ex parte order needs to be issued in this regard immediately."
17. The apprehension expressed/recorded in the police reports and the impugned order are two-fold. First, if the petitioner wants to enter Gobardhana Pitha or holds any public meeting challenging the authority and position of present recognised Sankarcharya or claims the rights and privilege as Sankaracharya in Puri, there may be commotion, clashes or breach of peace. Second apprehension is very wide and general in nature that very presence of the petitioner in Puri district has caused irritation of such magnitude in the minds of the general public that it is likely to cause breach of peace and blood-shed. While the first apprehension can be appreciated it is difficult to find out any rational basis for the second apprehension.
18. Second party referred to in the impugned order is the petitioner alone. He came from Delhi by air on the same day, reached Puri at about 5.30 p.m., went to his place of stay, a house called Pujya Puja belonging to one of his disciples. The house Pujya Puja is situated about one kilometre away from Gobardhana Pitha. There is no allegation anywhere that petitioner has brought with him a good number of followers or that he has considerable number of followers in Puri town. Rather, it appears from the police report and impugned order that the present recognised Sankaracharya has numerous followers and devotees and that almost entire population of Puri town became irritated hearing the news of the petitioner's arrival. It is not clear on what basis the Magistrate formed his opinion that mere stay of the petitioner in Puri town without any further act would lead to serious breach of peace and blood-shed. It is really beyond comprehension and militates against any sense of logic that mere stay of a Hindu Sannyasi with a handful of followers, if any at all, without any further overt act can pose such a threat that the fundamental right of a citizen to reside peacefully anywhere in India should be completely taken away.
19. From the Station Diary Entry No. 267, dt. July 16, 2000 as disclosed by the opp. parties themselves it appears that in the afternoon of July 16, 2000 the Aditya Bahini under the leadership of Shankarlal Agarwal took out a procession without required licence or permission or information to the police, came to Pujya Puja where the petitioner was residing and condemned the activity of the petitioner. According to the police report the said procession consisted of about 60 to 80 persons. The materials on record ex facie indicate that after arrival at Puri the petitioner did not indulge in any kind of provocative activity and the Aditya Bahini of the present recognised Sankaracharya, in fact, initiated an offensive, overt act and came to Puja Pujya to demonstrate their displeasure publicly.
20. In the present dispute the following recognised rights of the parties are involved :
(i) Swami Nischalananda Saraswati is the recognised Sankaracharya of Puri Gobardhana Pitha and as such he has the recognised right of enjoying all legal rights and privileges and status associated with the honoured position of Sankaracharya.
(ii) The petitioner has the fundamental right guaranteed under Articles 19 and 25 of the Constitution of India subject to the restriction contained in those Articles.
(iii) The petitioner has the right of approaching the appropriate legal forum for establishment of his claim to the position of Sankaracharyu in accordance with law.
21. As mentioned herein before, the Supreme Court has laid down that while exercising power under Section 144, Cr.P.C. it is the imperative duty of the authority to ensure that the recognised rights are not unnecessarily interfered with and the prohibition should ordinarily be against actions or attempts to invade such recognised rights if those are likely to cause breach of peace or serious law and order problem. A prohibitory order restraining the petitioner from going within a specified radius of the Gobardhana Pitha, holding any public meeting, taking out any procession claiming rights and privileges associated with the position of Sankaracharya would have been sufficient to protect the legal rights of the recognised Sankaracharya. The reports of the police and the administration clearly indicate that the Aditya Bahini, in fact, adopted an aggressive attitude. defied the law, took out a provocative procession and even came lo the place of residence of the petitioner. The administrative authority, according to the principles settled by the Supreme Court were/are to take such steps as are necessary for the purpose of protection of the recognised fundamental rights of the petitioner and the restrictions, if necessary, should have been imposed on the Aditya Bahini or the followers of the present recognised Sankaracharya. On the basis of the materials on record this Court is of the considered view that the apprehension that mere presence of the petitioner in Puri town without any other kind of overt act was/is likely to cause breach of peace and blood-shed was/is wholly absurd and is not borne out by the materials on record. The successive prohibitions under Section 144, Cr.P.C. restraining the petitioner from entering Puri town and/or residing therein peacefully also attracts the vice of abuse of power and is contrary to the decision of the Supreme Court in Jagadiswarananda Abadhut v. Police Commissioner, Calcutta (supra). It appears that by such successive prohibition the administration is seeking to impose a kind of permanent ban on petitioner's entry to Puri town.
22. Puri is a sacred place being the seat of Lord Jagannath. Every religious minded Hindu desires to pay visit to Puri to have a 'darshan' of Lord Jagannath and to offer puja to him. The petitioner is also a Hindu Sannyasi and he has the fundamental right to come to Puri, reside here peacefully and to visit the temple of Lord Jagannath as a Hindu without claiming any right or privilege as Sankaracharya.
23. The Executive Magistrate and the other administrative authorities involved in the decision making process failed to maintain required dispassionate objectivity. Even allowing the freedom administrative authorities are entitled to have in taking their decisions, the impugned decision prohibiting the writ petitioner from staying in Puri town is unwarranted and unreasonable. The Executive Magistrate and police have failed to distinguish between factors which concern the present recognised Sankaracharya and his devotees and those which concern the administration and such confusion has made the impugned order vulnerable. Even the satisfaction as recorded in the impugned order does not justify the ultimate prohibition. The Executive Magistrate has recorded satisfaction that reasonable restriction on his free movement is necessary, but the order he has ultimately passed is prohibition of stay in Puri. Reasonable restriction and total prohibition are wholly different.
24. The Executive Magistrate has recited that 'it is reported that writ petitioner's presence and movement in Puri is an irritant to the general public which may ultimately disturb public tranquillity at any moment.' Population of Puri town is a few lakhs. A public petition by a few hundred or a procession by 80 persons can by no stretch of imagination indicate that general public of Puri was irritated. This Court does not find any basis for such sweeping generalisation.
25. Moreover, the proposition that feeling of irritation by a Section of the people is sufficient to interfere with the guaranteed fundamental right of peaceful residence is fraught with dangerous consequences. In a democracy where different antagonistic political parties or groups function, visit or presence of a leader may be an irritant to the supporters of the rival groups or political parties. In India demonstration, showing of black-flag, holding of protest rallies against visit of leaders and even foreign dignitaries are not unusual. If feeling-of irritation by a Section of the public is regarded as sufficient to prohibit peaceful residence. most of the dignitaries and leaders cannot enjoy free movement. The apprehension expressed in the police report did not call for the total prohibition inflicted by the impugned order. The impugned order was/is overhasty and ex facie disproportionate to the apprehension reported and satisfaction recorded. There was no such emergency justifying direction to throw out the writ petitioner outside the Puri sub-division immediately. Emergency, if any, could have been taken care of by imposing certain reasonable restrictions on the movement and activity of the writ petitioner in Puri and further order could have been passed depending on further development. If this kind of overhasty and disproportionate order is allowed to survive the cherished freedom guaranteed by the Constitution will be meaningless. It is thus clear and apparent that the Executive Magistrate has failed to exercise his extraordinary power under Section 144, Cr.P.C. in accordance with the settled legal principles as mentioned earlier.
26. Although this Court holds that the prohibition as imposed was/ is unreasonable it accepts that materials on record make out a case for imposition of reasonable restrictions on the movement and activity of the writ petitioner during his stay at Puri.
27. This Court is unable to accept the allegation that the impugned order was passed at the instance of the present District Magistrate and Collector, Puri as there is no material excepting his letter dated September 5, 1999 (Annexure-2) written to the Commissioner of Police, Baroda to arrive at such conclusion. The said letter gives rise to some suspicion, but suspicion is no substitute for conclusive proof. At the same time this Court observes that such an official letter from the head of the district administration was not proper. This letter could be appreciated if it was written by Secretary or a devotee or disciple or admirer of the present Sankaracharya of Puri and not by the Collector of the district.
28. As this Court has elaborately analysed the merit of the impugned order to examine its sustainability, it is not considering the submission whether the order is bad due to non-observance of principles of natural justice, either before or after the impugned order.
29. Mr. Sovesh Ray, learned Advocate-General, Mr. A. Mukherji, and Mr. A. B. Misra, Senior Advocates have referred to various decisions and have submitted that the fundamental rights and legal rights of an individual can be curtailed where maintenance of peace, public order and tranquillity demand such restriction. There is no dispute about that proposition. Existence of power and exercise of power are two different things. Even where there is power, its exercise must be for achieving the object for which such power has been conferred. It is also equally settled that this extraordinary power under Section 144, Cr.P.C. is to be exercised bona fide, judiciously and only to the extent the situation justifies. Arbitrariness and/or use of power for a co-lateral or oblique purpose is anathema to a democratic society governed by rule of law. It has been submitted that the administration is the best judge of the prevailing situation as it is responsible for maintenance of public peace, law and order and the Court of law should not substitute its opinion in place of the opinion in the administration. It is true that proper respect should be given to the perception of administration, but even such perception is subject to judicial review and when it is found that perception is imaginary or perceived threat has been blown out of proportion in order to make out a case for sweeping restrictions the High Court cannot shut its eyes to such improper use or misuse of power.
30. It is a basic principle of rule of law that the administrative authorities exercising statutory powers and even discretions must act objectively, reasonably, fairly and justly because "discretion is a science or understanding to discern between falsity and truth, between wrong or right, between shadows and substance, between equity and colourable gloss and pretences and not to do according to their wills and private affections......" (Administrative Law, Wade and C.F.Fersyth, 7th Edition, Pages 387-388).
Applying the above formulation this Court is of the view that the Executive Magistrate failed to exercise his discretion in a just, fair and objective manner and impugned order attracts judicial interference.
31. In the facts and circumstances as stated herein above, this Court is of the view that the impugned prohibition is unsustainable but the petitioner is liable to be made subject to some reasonable restrictions/ prohibition proportionate to the apprehended threat. Accordingly while setting aside the impugned prohibition this Court thinks it fit and proper to impose certain restrictions on the movement and activity of petitioner during his stay at Puri. However as life of impugned order is only two months from the date of order, the restrictions imposed by this order will be co-extensive with the life of the original order. In case it becomes necessary to pass any fresh order the concerned Magistrate and the other administrative authorities will bear in mind the principles stated and observations made in this judgment and act objectively and reasonably as the situation demands.
32. For the foregoing reasons the impugned order of prohibition dated July 15, 2000 passed by the Sub-divisional Executive Magistrate. Puri is set aside subject to the following restrictions on the movement and activity of the writ petitioner during his stay at Puri.
(i) The writ petitioner is prohibited from going within a radius of 1000 metres' from Gobardhan Pitha, the sacred seat of Sankaracharya, Puri.
(ii) The writ petitioner will not hold any public meeting or take out any procession during his stay in Puri.
(iii) During his stay at Puri the writ petitioner will not claim any right or privilege as Sankaracharya of Puri so long as his claim is not recognised and/or established in appropriate forum in accordance with law.
(iv) The writ petitioner will not issue any statement containing disparaging remarks or casting reflections on the present recognised Sankaracharya of Puri.
(v) Whenever the writ petitioner wants to move out of his place of stay in Puri outside the prohibited zone, he will inform the local police station in advance.
The above restrictions and restraints will remain operative till the period of validity of the impugned order dated July 15, 2000. If the Sub-divisional Executive Magistrate or any other appropriate authority decides to pass any fresh order he will keep in mind the enunciations and observations made in this judgment before passing any such order.
This Court has not considered the legality or propriety of the order dated July 17, 2000 passed by Sub-Divisional Judicial Magistrate, and the writ petitioner is at liberty to take such legal steps as permissible in respect of the same.
The writ petition is disposed of. No costs.