Patna High Court
Kamla Kant Mishra And Ors. vs State Of Bihar And Ors. on 22 January, 1962
Equivalent citations: AIR1962PAT292, AIR 1962 PATNA 292, 1962 BLJR 236 ILR 41 PAT 871, ILR 41 PAT 871
Author: V. Ramaswami
Bench: V. Ramaswami
JUDGMENT Ramaswami, C. J. 1. In this case the petitioners have obtained a rule from the High Court calling upon the respondents to show cause why a notification of the State Government dated the 18th July, 1961, published under Section 144, Sub-section (6), of the Code of Criminal Procedure, should not be quashed by grant of a writ in the nature of certiorari under Article 226 of the Constitution. 2. Cause has been shown, by the learned Government Advocates on behalf of the respondents to whom notice of the rule was ordered to be given. 3. The notification of the State Government dated the 18th July, 1961, is annexure D to the application of the. petitioners. By this notification, the State Government has extended the order of the City Magistrate of Jamshedpur under Section 144 of the Code of Criminal Procedure, made on the 21st May, 1961, for a further period of four months with effect from the 18th July, 1961. The order of the City Magistrate u/s. 144 of the Code of Criminal Procedure prohibited the petitioners from entering into the compound and the office of the Tata Workers' Union situated on, K. Road, Jamshedpur, with effect from the 21st May, 1961. The notification of the State Government dated the 18th July, 1961, is to the following effect:- "NOTIFICATION The 18th July, 1961. No. 8255 C--Whereas the following orders have been made under the provision of Section 144, Code of Criminal Procedure, 1898 (V of 1898) by Shri K. N. Mishra, City Magistrate, Jamshedpur:- 1. To Shri R. L. Verma, Jamshedpur. Whereas it has been made to appear to me that the President, Tata Workers' Union, Jamshedpur, has informed you regarding the adoption of the resolution of ratification of no-confidence motion against you in the General Body meeting of T. W. Union on 17th May, 1961, and you received the letter on 18th May, 1961, and still you have not refrained from amending the office of Tata Workers' Union, situated at K. Road, Jamshedpur, and I am satisfied that your going to the office of Tata Workers' Union, may lead to a serious breach of the peace the prevention of which is immediately necessary. I, K. N. Mishra, City Magistrate, Jamshedpur, specially empowered under Section 144, Criminal Procedure Code, therefore hereby restrain you from going to the office of the Tata Workers' Union, situated at K. Road, Bistupur, Jamshedpur, for a period of 60 (sixty) days, with effect from today. You are also called upon to show cause by 25'h May, 1961, at 6-30 A. M. as to why this order under Section 144, Criminal Procedure Code, should not be made absolute against you. Given under my hand and seal of the Court, this the 2Ist day of May, 1961. Sd. K.N. Mishra. City Magistrate Jamshedpur, 21-5-1961.' 2. 'To (1) Shri Kamla Kant Mishra, (2) Shri Sadhu Singh, (3) Shri P. C. Joshi and (4) Shri M. N. Govende, all of Tata Workers' Union. Whereas the officer in charge of Bistupur P. S. has submitted a report that there is serious apprehension of breach of peace in respect of the Tata Workers' Union Office and the same still continues. And whereas I am satisfied that a serious apprehension of breach of peace still exists due to rivalry between two rival groups of the Tata Workers' Union and the same (breach of peace) cannot otherwise be prevented unless there four members of the O. P. are prohibited from entering into the office and compound of the Tata Workers' Union at 'K' Road, Bistupur, for a further period of 30 (thirty) days, I. K. N. Mishra, City Magistrate Jamshedpur, specially empowered under Section 344, Criminal Procedure Code, do hereby prohibit Shri Kamala Kant Mishra, Shri Sadhu Singh, Shri P. C. Joshi and Shri M. N. Govende from entering into the office and compound of the Tata Workers' Union situated at 'K' Road, Bistupur for a period of 30 days with effect from today, the 20th June, 1961, and also call upon you to show cause why this order under Section 144, Criminal Procedure Code, should not be made absolute against you. Cause, if any, be shown on 29th June, 1961 at 6-30 A. M. Given under my hand and the seal of the Court this the 20th day of June, 1961. K.N. Mehra. City Magistrate Jamshedpur. 20-6-1961. And whereas the above orders expire on the 19th July, 1961, and whereas the Governor of Bihar is satisfied that the conditions1 which rendered these orders necessary still exist and that there is apprehension that they may continue to exist for a longer time and that it is necessary that these orders should be expended for a further period beyond the present date of their expiry in the interest of the: safety of the life of the inhabitants of the town of Jamshedpur and in order to avoid the risk of riot or affray: Now, therefore, in exercise of the powers conferred by Sub-section (6) of Section 144 of the said Code, the Governor of Bihar is pleased to direct that the above orders will continue to remain in force for a period of four months, with effect from the date of publication of this notification in the Bihar Gazette, unless previously withdrawn by a notification in the said Gazette. By order of the Governor of Bihar M. Sinha, Deputy Secretary to Government." 4. On behalf of the petitioners learned Counsel put forward the argument that the notification of the State Government under Section 144, Sub-section (6) of the Code of Criminal Procedure, violates the guarantee under Article 19 (1) (b), (c) and (d) of the Constitution and is, therefore ultra vires and illegal. Article 19(1) (b), (c) and (d) guarantees to all citizens the right to assemble peaceably and without arms, the right to form associations or unions and the right to move freely throughout the territory of India. But these rights are not absolute but qualified. Article 19 (3) states that "nothing in Sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing in the interests of public order, reasonable restrictions on the exercise of the right conferred by the said Sub-clause". Article 19 (4) provides: that "nothing in Sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause." Article 19 (5) provides that "nothing in Sub-clauses (d), (e) and (f) of the said clause shall effect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions: on the exercise of any of the rights conferred by the said sub-clauses either in the interests of 'he general public or for the protection of the interests of any Scheduled Tribe." 5. Section 144 of the Code of Criminal procedure confers power upon certain Magistrates to issue temporary orders in urgent cases of nuisance or apprehended danger. Section 144 is to the following effect:- "144. (1) In cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub-Divisional Magistrate, or of any other Magistrate (not being a Magistrate of the third class) specially empowered by the State Government or the Chief Presidency Magistrate or the District Magistrate to act under this section there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Such Magistrate may, by a written order string the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, if such, Magistrate considers that such 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. (2) An order under this section 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 this section may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. (4) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor in office, (5) Where such an application is received, the Magistrate shall afford to the applicant an early 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." Sub-section (6) of Section 144 is important and provides:- "(6) No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the State Government, by notification in the Official Gazette, otherwise directs," 6. The question presented for determination in this case is whether the power conferred upon the State Government under Section 144, Sub-section (6), of the Code of Criminal Procedure, is constitutionally valid. 7. It is well recognised that the guarantee of fundamental rights under Article 19 of the Constitution is not absolute. The individual rights which the Constitution safeguards are individual rights in a social organization which requires the protection of laws against the evils which menace the life, safety and welfare of the people. The rights and powers of the Constitution are largely means of protecting important social and individual interests; and because it is necessary that these interests should be balanced the Articles of the Constitution cannot be construed in an absolute sense. As Holmes, J., used to say "In a complicated society there are no absolutes." The question for determination in the present case, therefore, is whether the provision of Section 144 (6) of the Criminal Procedure Code transcends the permissible limits of restriction under Article 19 (3), (4) and (5) of the Constitution. I do not think that the test of reasonableness can be put in the strait jacket of a narrow formula. The test of reasonableness should be applied to each individual statute impugned and it is not possible to lay down any abstract standard of reasonableness as applicable to all cases. As pointed out by the Supreme Court in State of Madras v. V.G. Row, AIR 1952 SC 196, some of the important considerations in applying the test of reasonableness are the nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition and the prevailing conditions at 'the time of passing the statute. It is manifest in the present case that Section 144, Sub-section (6) of the Code of Criminal Procedure, confers wide amplitude of power on the State Government to deprive a citizen of his right of movement and the right of association for an indefinite period of time. It is also manifest that the citizen affected has no right to make any representation to the State Government either antecedent to making the Order or Subsequent to it. It is also evident that the citizen affected, has no right of appeal or revision to any higher authority from the order of the State Government. As a matter of contrast, the power of the Magistrate acting under Section 144, Sub-section (1), of the Code of Criminal Procedure, is subject to important safeguards, The right of representation is given to the persons affected under Section 144, Sub-sections (4) and (5) of the Code of Criminal Procedure, and there is a, duty cast upon the Magistrate to give a hearing to the persons affected and power is also granted to the Magistrate to alter or rescind the order made by him under that section. It is also important to notice that the duration of the order of the Magistrate under Section 144, Sub-section (1), Code of Criminal Procedure, is a period of two months It is also manifest that the order of the Magistrate under Section 144, Sub-section (1), is subject to the provisional jurisdiction of the High Court under Sections 435 and 439 of the Code of Criminal Procedure, but the power conferred upon the State Government under Section 144, Sub-section (6), of the Code of Criminal Procedure, is not subject to these important safeguards. There is no right of representation given to the parties who may be, affected by the order of the State Government, There is no right of hearing given to such persons whether antecedent to the making of the order of the State Government or subsequent to the order of the State Government. It is also important to notice that there is no time limit fixed by the statute for the duration of the order of the State Government. In my opinion the absence of these important safeguards makes the enactment of Section 144, Sub-section (6), Of the Code of Criminal Procedure, unconstitutional, and there is violation of the guarantee conferred by Article 19(1)(b), (c) and (d) of the Constitution in this case. 8. The view, that I have expressed is borne out by the decision of the Supreme Court in Virendra v. State of Punjab, (S) AIR 1957 SC 896 The question at issue in that case was with regard to the constitutional validity of Section 2(1) and Section 8(1) of the Punjab Special Powers (Press) Act, 1956. Section 2(1) of the Act runs as follows : "2. (1) The State Government or any authority so authorised in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by order in writing addressed to a printer, publisher or editor.--(a) prohibit the printing or publication in any document or any class of documents of any matter relating to a particular subject or class of subjects for a specified period or in a particular issue or issues of a newspaper or periodical : Provided that no such order shall remain in force for more than two months from the making thereof : Provided further that the person against whom the order has been, made may within ten days of the passing of his order make a representation to the State Government which may on consideration thereof modify, confirm or rescind the order". Section 3(1) of the Act stated as follows : "3. (1) the State Government or any apriority authorised by it in this behalf, if satisfied that such action is necessary for the purpose of preventing or combating any activity prejudicial to the maintenance of communal harmony affecting or likely to affect public order, may, by notification, prohibit the bringing into Punjab of any newspaper, periodical leaflet or other publication". It was held by a unanimous Bench of the Supreme Court that Section 2(1) was constitutionally valid but the provisions of Section 3(1) were ultra vires of Article 19(1)(a) and (g) of the Constitution. The gist of the decision of the Supreme Court was that although the exercise of the powers under Section 3(1) was subject to the same conditions as to the satisfaction of the State Government or its delegate as was mentioned in Section 2(1)(a), there was however, no time limit for the operation of an order made under Section 3(1), nor was there any provision made for any representation being made to the State Government. The absence of these safeguards in Section 3 clearly made its provisions unreasonable and hence ultra vires the State Legislature. 9. On behalf of the respondents the learned Government Advocate referred to the decision of the Bombay High Court in Bapurao Dhondiba Jagtap v. State (S) AIR 1958 Bom 300 in which it was held that the provisions of Section 37 (3) of the Bombay Police Act, 1951, were constitutionally valid. It was pointed out by the learned Government Advocate that the provisions of Section 37(3) of the Bombay Police Act are similar to those of Section 144, Sub-section (6), of the Code of Criminal Procedure. For the reasons I have already given, I respectfully dissent from the decision of the Bombay High Court in (S) AIR 1956 Bom 300. I am also of the view that the decision of the Bombay High Court is not authoritative in view of the later decision of the Supreme Court in (S) AIR 1957 SC 896, which must be given precedence. 10. For these reasons I hold that this application must be allowed and a writ in the nature of certiorari under Article 226 of the Constitution must be granted for quashing the notification of the State Government dated the 18th July, 1961, which is annexure D to the application. 11. I would accordingly allow this application, but there will be no order as to costs. Choudhary, J.
12.I agree.