Karnataka High Court
Pramod Muthalik vs The District Magistrate on 31 January, 2003
Equivalent citations: 2003CRILJ1783, ILR2003KAR1953, 2004(2)KARLJ139, 2003 CRI. L. J. 1783, 2003 AIR - KANT. H. C. R. 806, (2003) ILR (KANT) (3) 1953, (2003) 3 CHANDCRIC 168, (2003) 2 KCCR 958, (2003) 3 CRIMES 510, (2004) 2 KANT LJ 139, (2003) 3 RECCRIR 247, (2003) 3 CURCRIR 200
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER Sreedhar Rao, J.
1. The District Magistrate, Davanagere passed the impugned order debarring the entry of the petitioner in any part of the Davangere District for a period of one month from 4.1.2003 to 3.2.2003.
2. Saliently the impugned order held out a reason that on 31.12.2002 within the limits of Basavanagara police Station around 11.30 a.m. near Vittal Mandir one Lakshman and Nagaraj sons of Fakirappa were done to death by one Khaleemulla and 15 to 20 others belonging to muslim community. In that connection crime No. 1/ 2003 was registered for committing offences punishable under Section 143, 147, 148, 323, 324, 114, 506, 307, 302 read with 149 IPC against Khaleemulla and others. On 3.1.2003 around 3.35 p.m. the dead bodies of Lakshman and Nagaraj were taken out in a procession by the activists of Bhajarangadal, R.S.S. V.H.P. and B.J.P in large number raising slogans against the muslim community. The petitioner is said to be an activist of Bhajarangadai and against him several cases are registered in Hubli, Dharwad, Ranebennur, Belgaum, Bagalkot etc., similar Orders are said to have been passed against the petitioner by the Deputy Commissioners of Hubli, Belgaum, Bagalkot etc. As per the Police Report, it is apprehended that the petitioner is likely to visit Davanagere and likely to address the public gatherings to incite the communal and religious feelings which may severally affect the public peace and public order. Quoting the said reasons, the impugned order came to be passed.
3. Sri V.Y. Kumar, HCGP appearing for the State has filed objection statement of the respondent which virtually reiterates the facts stated in the impugned order.
4. Sri K.M. Nataraj, the Counsel for the petitioner relied on the ruling of the Supreme Court in GULAM ABBAS AND ORS. v. STATE OF U.P. AND ORS.' and between the same parties in the same lis, the judgment rendered in Review Petition is relied on . In the said decision, it is held that provisions of Section 144 could be invoked when the public peace and tranquility or other objects mentioned in the provisions of the section are exposed to peril, the Magistrate in his judicious opinion take appropriate decision and act accordingly. Further observes that the requisite conditions of exercise of discretion under Section 144 are explicitly narrated in the provisions of Section 144 Cr.P.C. Therefore no order could be passed contrary to what the section itself so clearly requires as a condition precedent for passing of an order. It is further observed that any individual disputes constantly recurring between the parties cannot be a subject matter of decision under Section 144 Cr.P.C. The decision lays down the general proposition of law and enabling conditions for exercise of jurisdiction under Section 144 Cr.P.C.
5. The decision in MADHU LIMAYE AND ANR. v. SUB DIVISIONAL MAGISTRATE, MONGHYR VED MURTI AND ORS., is relied on. In para 25, the following observations are made:
"25. The gist of action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even exparte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it, the exercise of power would have no justification. 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, in its efficacy and in the extent of its application. There is no general proposition that an order under Section 144 Cr.P.C. cannot be passed without taking evidence; (see Mst. Jagrupa Kumari v. Chotay Narain Singh (1936) 37 Cri.L.J. 95 (Pat) which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances, dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so far as the other parts of the Section are concerned, the key note of the power is to free society from menace of serious disturbances of a grave character. The Section is directed against those who attempt to prevent exercise of legal rights by others or imperil the public safety and health. If that be so, the matter must fall within the restriction which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order."
6. The Counsel relied on the ruling of this Court in AMBADAS v. STATE OF KARNATAKA, In the said decision relying on the ruling of the Supreme Court in the case of PREM CHAND v. UNION OF INDIA, the following observations are made;
"Mere apprehension of the police is not enough for passing an order of externment. Some ground or the other is not adequate for making the order of externment. There must be a clear and present danger based upon credible material which makes the" movement and acts of the person in question alarming or dangerous or fraught with violence. Likewise, there must be sufficient reason to believe that the person proceeded against is so desperate and dangerous that his mere presence in the locality or any part thereof is hazardous to the community and its safety. A stringent test must be applied in order to avoid easy possibility of abuse of this power to the detriment of the fundamental freedoms. Natural justice must be fairly complied with the vague allegations and secret hearings are gross violations of Articles 14,19 and 21 of the Constitution, The Act permits externment provided the action is bonafide. All power, including police power, must be informed by fairness if it is to survive judicial scrutiny."
7. Per contra Sri V.Y. Kumar, HCGP, appearing for the State contended that the order passed is in full conformity with the provisions of Section 144 Cr.P.C. there is imminent threat to public peace and order by the visit of the petitioner. There is a reported incident of a murder given with a communal colour. To nip in the bud, the formidable and potential danger of communal tensions and communal riots, preventive step has been taken. The order does not makes a blanket ban on the entry of the petitioner in Davanagere district for all times to come. It is only an order limited in point of time to meet the exigencies of the situation, The Magistrate has also exercised discretion in a sound manner limiting the restriction for a period of one month although the provision enables the Magistrate to pass an order to a period of two months. Therefore contends that no malafides can be inferred.
8. The decision of the Bombay High Court in Manohar Joshi's case (1989 Crl.LJ. 1364) lays down a ratio that while passing an exparte order objectively it has to be demonstrated by the Magistrate that the situation is so emergent that the circumstances do not admit providing an opportunity to show cause while passing an exparte order under Sub-section 1 & 2 of Sections 144 Cr.P.C. It is further held that the exparte order passed by the Magistrate placed excessive restriction more than the need and requirement. The alleged disturbances were only in three areas. Therefore disbarring the petitioner therein from entering the entire district was also held to be unreasonable.
9. Drawing parallel to the facts, the Counsel for the petitioner submitted that in the present case, the restriction placed is highly excessive and more than the need. In this regard the decision of the Supreme Court in RUPINDER SINGH SODHI AND ANR. v. UNION OF INDIA AND ORS., also lays down a binding ratio in the following words in para 2.
"2. ...... But all such restraints on personal liberty, if at all, have to be commensurate with the object which furnishes their justification. They must be minimal and cannot exceed the constraints of the particular situation, either in nature or in duration. Above all, they cannot be used as engines of oppression, persecution, harassment or the like. The sanctity of person and of privacy has to be maintained at all costs and that cannot ever be violated under the guise of maintenance of law and order."
10. In the light of the ratio laid down in the decision of the Supreme Court and the Bombay High Court the material in the impugned order and the accompanying objection statement filed, show total absence of material to justify passing of an exparte order. The impugned order does not contain how the situation is so emergent and does not admit compliance of rules of natural justice of providing opportunity to show cause before an order is made.
11. The facts indicate that a murder had taken place on 31.12.2002. The accused were the people belonging to Muslim community, the funeral procession of the deceased were taken out by the activists of the B.J.P., Bhajarangadal, V.H.P. in greater numbers and that during the procession inciting and inflammatory slogans were raised against muslim community having a tendency of building up a communal tension in the town. In fact the procession of the nature stated was taken out, there would have been a police escort and any violators of law contributing for communal tension should have been dealt with. The order does not indicate any such action having been taken and no case as such against any person registered to substantiate the said allegations. Immediately on the following days, no untoward incidents of any nature have happened. Therefore to say that the petitioner's visit would lead to worsening of law and order situation and would result in building of communal tension by his alleged inflammatory speeches appears to be farfetched reason.
12. Assuming for the moment hypothetically that the visit of petitioner is likely to create communal tension by his inflammatory public speeches. The blanket order debarring the petitioner from entering the district of Davanagere appears to be too harsh, excessive and disproportionate to the need. It is evident from the order that by inflammatory speeches of the petitioner, it is likely that communal tension would build up resulting in breach of peace and public tranquility. If the act of delivering public speeches is alone to be the cause for the apprehended threat to public peace only to the extent of directing the petitioner not to address public rallies could have been a suffice solution. On the contrary, debarring the petitioner from entering the district for a period of one month by a blanket order is too excessive. The Magistrate without resorting the debarring of the petitioner from entering Davanagere, could have directed the petitioner and all the political organizations from holding any rallies or meetings for some time in order to allow the event of murder to die down in the memories of the public.
13. The provisions of sub-sections 5, 6 and 7 provides a statutory in built protection to the aggrieved to apply to the Magistrate or to the Government as the case may be for rescinding or altering the order by showing the cause and in the event of such an application made under Sub-section (5) it is mandatory obligation on the part of the authority to consider the objections and dispose of the same on merits by a written order supported by reasons. It is also necessary to mention that the opportunity to be provided is not a illustory formality. The combind reading of the provisions of Sub-section (1) and (2) and sub-sections 5, 6 and 7 would impliedly underlays the requirements of passing an order either under Sub-section (1) of Section 144 Cr.P.C. or exparte order under Sub-section (2) of Section 144 Cr.P.C. all the necessary details of facts and the incriminating material should form part of the order. Any allegations if borne out by a documentary material, it is necessary for the authority concerned to provide copies of such documentary material along with the order to enable the respondent to show cause against the order. Mere mention of the particulars of criminal cases does not be a sufficient compliance. It is necessary that the document relating to the cases mentioned have to be furnished. Some times it could happen that any of the incriminating material borne out by documents is made subject matter of the order and if the said incriminating material are to be obtained from far of places and not immediately accessible to the respondent, mere mention of case numbers in the indictment order would not be a sufficient opportunity in practical or real sense. The authority while acting upon such incriminating material necessarily would have with it the documentary material in that regard and necessary copies of the same have to be furnished along with the order. In the present case, I find although there is mention of registration of some cases elsewhere the copies of the FIR and other incriminating material have not been furnished. In the absence of such compliance, it cannot be said that there is proper compliance to enable the respondent to meet the case effectively.
14. The Counsel for the petitioner relied on the ruling of the Calcutta High Court in DAYAMAY BHATTACHARYA v. SURYA KANTA SUR AND ORS. 1969(2) Vol. VII Crimes Page 614. In para 4 the following observations are made:
"4. Judged in the context of the above principles of law, the order dated January 19, 1987, which is the basis for moving this Court in the writ jurisdiction, cannot be sustained. In the instant case, the learned Magistrate did not record any satisfaction that there was any breach of the peace which necessitated initiating a proceeding under Section 144 Cr.P.C. so as to empower him to issue direction in accordance therewith. On the contrary, he called for a report from the Officer-in-Charge of Dumdum Police Station, obviously with the purpose of ascertaining whether there was any apprehension of the breach of peace or not as alleged in the application. In other words, to obtain satisfaction as to whether there was an apprehension of breach of peace, the learned Magistrate called for such a report. The order of the learned Magistrate therefore must be held to be without jurisdiction. Consequently the Writ application must be held to be not maintainable."
15. On the strength of the ratio laid down, the Counsel contended that it is improper for the Magistrate to act upon the Police report and the Magistrate should form his own independent opinion. In the said decision, the Magistrate has called for and secured the report of the Police. The act of Magistrate in obtaining the report of the Police was held to be without jurisdiction. I respectfully disagree with the views expressed by learned M.K. Mukherjee J., The mandatory requirement of Section 144 Cr.P.C. lays down that the Magistrate should satisfy himself and form his own opinion. It does not otherwise prevent the Magistrate from having an information from various sources. If the opinion is also secured from the Police source, it cannot be said that it is without jurisdiction and it cannot be said that the information of the police would unduly influence the opinion of the Magistrate. Based on the information obtained from several quarters, the Magistrate is empowered to take his own opinion. In that view calling for the report from the Police or considering the report of the Police while forming an opinion does not appear to be bad law and cannot be assailed as without jurisdiction. In view of the facts and pleadings stated, I find that the order of the District Magistrate is bad in law and liable to be quashed.
Accordingly, the petition is allowed. The impugned order is quashed.