Delhi High Court
Bano Bee vs Union Of India & Another on 2 August, 2010
Author: Dipak Misra
Bench: Chief Justice, Manmohan
* HIGH COURT OF DELHI AT NEW DELHI
Judgment Reserved on : 28th July, 2010
Judgment Pronounced on: 2nd August, 2010
+ W.P.(C) 5000/2010
BANO BEE ..... Petitioner
Through Mr.Prashant Bhushan with
Mr.Rohit Kr. Singh and
Mr.Pranav Sachdeva, Advs.
versus
UOI AND ANR ..... Respondents
Through Ms.Jasbir Kaur, Adv. R-1
Mr.N. Waziri, Adv. R-2
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
1. Whether reporters of the local papers be allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
DIPAK MISRA, CJ
In this public interest litigation, the petitioner invoking the jurisdiction
of this Court under Article 226 of the Constitution of India has called in
question the legal substantiality and tenability of the order dated 6 th July,
2010 passed by the Deputy Commissioner of Police whereby he has, in
exercise of powers conferred on him under Section 144 of the Criminal
Procedure Code, 1973 (for short 'the Code') read with Notification No.
11036/1/08-UTL dated 31.10.2008 issued by the Government of India,
Ministry of Home Affairs, New Delhi passed an order prohibiting certain
activities.
W.P.(C) No.5000/2010 Page 1 of 5
2. It is urged in the petition that the Delhi Police has been issuing such
prohibitory orders from time to time as a result of which the fundamental
right to assemble peacefully under Article 19(1)(b) of the Constitution which
includes holding peaceful dharna, demonstration, etc. has been destroyed. It
is contended that the impugned order does not indicate any criteria for
granting or refusing permission. It is completely left to the discretion of
Delhi Police as a consequence of which the permission to hold dharna,
public meetings in the entire prohibited area which is the centre of power
and best suited for political dharna is denied.
3. It is averred that the petitioner is one of the members of 'Bhopal Gas
Pidit Mahila Stationary Karamchari Sangh' who had come along with other
activists to Delhi to raise a protest because of the failure of the Government
of India to set up an empowered commission to look into the problems of the
victims of toxic gases leak from the plant of Union Carbide in 1984, but the
same has become unfruitful because of the order passed by the Deputy
Commissioner of Police. Reference has been made to Section 144 to show
that in total violation of the said provision, the Delhi Police have been
issuing orders under Section 144, Cr.PC in a routine manner without there
being any emergent situation. It is the case of the petitioner that the said
orders create unreasonable restriction which affects the fundamental right of
the petitioner. It is urged that the prohibitory orders are in total violation of
Article 19(1)(a) and (b) and the same have been issued without any basis and
W.P.(C) No.5000/2010 Page 2 of 5
thereby tantamounts to abuse of the process of the mandate contained in
Section 144 of Cr.PC.
4. We have heard Mr. Prashant Bhushan, learned counsel for the
petitioner and Ms. Jasbir Kaur, learned counsel for respondent No.1 and
Mr.N. Waziri learned counsel for respondent No.2 on the question of
admission. It is submitted by Mr. Bhushan that the orders have been passed
one after the other in a routine manner without the authority addressing to
the emergent nature and taking recourse to power conferred on it under
Section 144 Cr.PC which is impermissible. It is propounded by him that the
prohibitions that have been stipulated in the order are violative of
fundamental rights and the right to protest is totally extinguished. To
buttress the submission, he has placed reliance on the decision in Himmat
Lal K. Shah v. Commissioner of Police, Ahmedabad (1973) 1 SCC 227.
5. Ordinarily we would have dealt with the law laid down in Himmat
Lal K. Shah Case (supra) and another decision rendered in Babulal Parate
v. The State of Maharashtra & Ors., AIR 1961 SC 884 by the Constitution
Bench, but we have come across a decision in Acharya Jagdishwaranand
Avadhuta v. Commissioner of Police, Calcutta and another, AIR 1984 SC
51, wherein it has been held as follows:
".....The other aspect, viz., the propriety of repetitive
prohibitory orders is, however, to our mind a serious
matter and since long arguments have been advanced, we
propose to deal with it. In this case as a fact from
October 1979 till 1982 at the interval of almost two
months orders under Section 144(1) of the Code have
been made from time to time. It is not disputed before us
that the power conferred under this section is intended
for immediate prevention of breach of peace or speedy
remedy. An order made under this section is to remain
W.P.(C) No.5000/2010 Page 3 of 5
valid for two months from the date of its making as
provided in sub-section (4) of Section 144. The proviso to
sub-section (4) authorises the State Government in case
it considers it necessary so to do for preventing danger to
human life, health or safety, or for preventing a riot or
any affray, to direct by notification that an order made by
a Magistrate may remain in force for a further period not
exceeding six months from the date on which the order
made by the Magistrate would have, but for such order,
expired. The effect of the proviso, therefore, is that the
State Government would be entitled to give the
prohibitory order an additional term of life but that
would be limited to six months beyond the two months'
period in terms of sub-section (4) of Section 144 of the
Code. Several decisions of different High Courts have
rightly taken the view that it is not legitimate to go on
making successive orders after earlier orders have
lapsed by efflux of time. A Full Bench consisting of the
entire Court of 12 Judges in Gopi Mohun Mullick v.
Taramoni Chowdhrani examining the provisions of
Section 518 of the Code of 1861 (corresponding to
present Section 144) took the view that such an action
was beyond the Magistrate's powers. Making of
successive orders was disapproved by the Division Bench
of the Calcutta High Court in Bishessur Chuckerbutty v.
Emperor. Similar view was taken in Swaminatha
Mudaliar v. Gopalakrishna Naidu, Taturam Sahu v. State
of Orissa, Ram Das Gaur v. City Magistrate, Varanasi,
and Ram Narain Sah v. Parmeshar Prasad Sah. 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.
It is relevant to advert to the decision of this Court in
Babulal Parate v. State of Maharashtra where the vires
of Section 144 of the Code was challenged. Upholding
the provision, this Court observed:
"Public order has to be maintained in advance in
order to ensure it and, therefore, it is competent to a
legislature to pass a law permitting an appropriate
authority to take anticipatory action or place
W.P.(C) No.5000/2010 Page 4 of 5
anticipatory restrictions upon particular kinds of
acts in an emergency for the purpose of maintaining
public order...."
It was again emphasized (at p.891 of AIR):
"But it is difficult to say that an anticipatory
action taken by such an authority in an emergency
where danger to public order is genuinely
apprehended is anything other than an action done
in the discharge of the duty to maintain order...."
This Court had, therefore, appropriately stressed upon
the feature that the provision of Section 144 of the Code
was intended to meet an emergency. This postulates a
situation temporary in character and, therefore, the
duration of an order under Section 144 of the Code could
never have been intended to be semi-permanent in
character."
6. In view of the aforesaid enunciation of law and keeping in view the
nature of assertions made in the writ petition, we are inclined to issue notice
on the question of admission and disposal.
7. Issue notice.
8. As Ms. Jasbir and Mr. Waziri have entered appearance, no requisites
need be filed. Counter affidavits be filed within two weeks. Rejoinder, if
any, be filed within a week thereafter.
9. Matter be listed on 25th August, 2010.
CHIEF JUSTICE
MANMOHAN, J.
AUGUST 02, 2010 pk W.P.(C) No.5000/2010 Page 5 of 5