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1. The High Court of Patna has declared the second part of Sub-section (6) of Section 144 of the CrPC ultra vires. Sub-section (6) reads:

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.
In the view of the High Court, an order made by the State Government extending the duration of an order under Section 144 imposes an "unreasonable restriction on the fundamental freedom of the citizens, because the order of the State Government is not subject to judicial scrutiny and the Code provides no machinery for applying for an order of rescission or alteration of the order.

2. Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where intimidate prevention or speedy remedy is desirable. It provides that when a Magistrate competent in that behalf is of the opinion that there is sufficient ground for proceeding under the section, and immediate prevention or speedy remedy is desirable, the Magistrate may make an order in writing against any person or the public generally when frequenting or visiting a particular place, if he considers that his 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 tranquility, or a riot, or an affray. The order must state the material facts of the case and it must be served in the manner provided by Section 134 and may direct a person to abstain from a certain act or to make certain order with certain property in his possession or under his management. In cases of emergency or in cases where the circumstances do not admit of service in due time of a notice upon the person against whom the order is directed, it may be passed ex pane. The order remains in force for not more than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray otherwise directs. The order may be rescinded or altered by a Magistrate on his own motion or on the application of any person aggrieved, if the order is passed by himself or by any Magistrate subordinate to him or by his predecessor in office. In deciding the application made to him the Magistrate must give an 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.

4. Power conferred upon a Magistrate to make an order under Section 144(1) is subject to the jurisdiction of the High Court under Sections 435 & 439 of the CrPC. Again an order under Sub-section (4) refusing to rescind or alter any order under the section, may be rectified by the High Court. The Magistrate may pass an order in the conditions prescribed in Sub-section (1) and not otherwise. The order does not remain in force for a period longer than two months, unless the State Government, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, directs otherwise. The power to "otherwise direct" involves authority to extend the duration of the Magisterial order for the duration of the danger or emergency. Sub-section (6) however does not authorise the State to make the order of the Magistrate permanent. The State must in "otherwise" directing take into consideration, whether it is a case of danger to human life, health or safety, or of a likelihood of a riot or an affray in respect of which an order has been made by the Magistrate, and whether it is necessary to extend the period beyond two months and then to direct that the order shall remain in force for a period longer than two months, but not after apprehension of danger or emergency ceases.

15. The only question that arises for decision in this appeal is whether the second part of Sub-section (6) of Section 144, Criminal Procedure Code namely the words "unless, in cases of danger to human life, health or safety, or a likelihood of a riot or any affray, the (State Government) by notification in the Official Gazette, otherwise directs" are liable to be struck down as being violative of any of the clauses in Article 19(1) of the Constitution.

16. The facts leading to the present proceedings are as follows: