9th TRIMESTER

A PROJECT ON THE PARTIAL FULFILMENT OF THE TOPIC:

SECTION 106-117 AND 153: MORAL

POLICING

SUBMITTED BY : Yashvardhan Bandi

SUBMITTED TO : Prof. P.K. Gupta

ROLL NO. : 2008 BALLB 19

 Contents
1.) INTRODUCTION…………………………………………………………………………
…………………6

2.) MORAL POLICING…………………………………………………..

……………………………………7

3.) INSTANCES………………………………………………………………………………
……………….12

4.) LIBERTY…………………………………………………………………………………
……….…………14

5.) Cr.P.C AND MORAL

POLICING……………………………………………………………..………17

6.) CONCLUSION AND

OBSERVATIONS………………………………………………………….23

7.) BIBLIOGRAPHY…………………………………………………………………………
……………….27
 INTRODUCTION
Moral policing, a phrase being used to name those group of people who have assumed self
proclaimed responsibilities to improve the cultural and ethnic style of living and also to become
our moral guardians. The Mangalore incident and a series of other such incidents show how this
phenomena is becoming prevalent in our country. The guarantees of liberty and freedom of
expression as enshrined in our constitution have started to seem meaningless under the black
shadows of such actions which now have become a regular on the newspapers of our country.
This project aims to have a look into such incidents specially the recent Mangalore one and then
I venture into looking at the provision of Cr.P.C. which are applicable and how the courts have
been interpreting them.
The real aim of the project is to discuss the interrelationship and the balance of the liberties and
freedoms vis-à-vis the rising moral policing incidents. A special attempt has been made to give
the well known concept of liberty a new structure. Liberty in the instant case becomes entwined
with the freedom to lead ones life as one wishes to. What would be the implications if someone
tries to impose his freedom to profess religion on to others who have at stake their own liberty.
Due to paucity of being bound in a structural course and time the researcher was unable to
explore more on the point of law however he has been dwelt a lot on the issues of social
implications and have tried to provide an opinion in the background of legal perspectives.
 MORAL POLICING

A typical evening at “Amnesia: The Lounge”, a pub in Mangalore in Dakshina Kannada district
of Karnataka, turned into a nightmare for a few young women on January 24. As television news
grabs later showed, in an incident as bizarre as it could be, they were chased out of the pub and
hit brutally by a group of men. Eyewitnesses say that a group of more than 40 people shouting
slogans such as “Bharat Mata ki Jai”, “Jai Sri Ram”, “Bajrang Dal ki Jai” and “Sri Rama Sene ki
Jai” barged into the pub.
Soon after the incident, Pramod Muttalik of the Sri Rama Sene, a four-year-old right-wing group
that is active in coastal Karnataka, claimed responsibility for it. He justified the attack by stating
proudly: “We are the custodians of Indian culture.”1
The Rama Sene was a little known entity before the incident. This leads many in the State to
believe that it could have used the incident to carve out a space for itself in coastal Karnataka
distinct from the Bajrang Dal, which has so far been dominating headlines for its aggressive
Hindutva stance in the region.
In his response to the media after the event, Chief Minister B.S. Yeddyurappa said there was no
connection between the Sri Rama Sene and the Bharatiya Janata Party. He, however, added that
the BJP too was against the “pub culture”2.
The Bajrang Dal, a Sangh Parivar outfit, was also quick to distance itself from the Rama Sene.
“It is a fringe organisation started by the renegade Muttalik and has limited support, with a
membership of around 200 in Mangalore,” said a senior Bajrang Dal leader3 .
Later, the police arrested 28 people for their role in the incident, including Muttalik and Prasad
Attavar, convener of the Rama Sene in the State. They were released on bail on January 31.

1
Fritz Blackwell (2004). India: A Global Studies Handbook. ABC-CLIO. pp. p126. "Among the "secular" minds ,
many hasten to point out that the majority of Hindus do not like hindutva (sic) at all. Some refer to hindutva (sic)
supporters as a "Hindu Taliban.""
2
Darryl D'Monte. "Beware the Hindu Taliban!". Rediff.com.
3
 "Mangalore attack: Sri Ram Sena chief arrested". Rediff.com. January 27, 2009. Retrieved on 2009-01-29.  "Ram
Sena chief apologises, arrested". zeenews.com. Jna 27 2008. Retrieved on 2009-01-29.  "Police arrest leader of Sri
Ram Sena". new.yahoo.com. Tue, Jan 27 09. Retrieved on 2009-01-29.  "Ram Sena chief held, but not for pub
attack". The Times of India. 27 Jan 2009,. Retrieved on 2009-01-29. "Muthalik re-arrested, IG says probe on". CNN
IBN. January 28, 2009. Retrieved on 2009-01-29.  "Karnataka Police arrests Ram Sena leader". The Indian.com.
January 27th, 2009. Retrieved on 2009-01-29. "Muthalik claims to lead Hindu suicide squad". Thu, Jan 29, 2009 at
01:27. Retrieved on 2009-01-29.  "BJP chief backs Sadhvi: ‘there’s no evidence’" (in Indianexpres.com). October
30, 2008. Retrieved on 2009-01-29.
Significantly, this is not the first case that Muttalik has been involved in. 41 cases were filed
against him between February 12, 1999, and September 15, 2008. Almost all the cases were
under Section 153 (a) of the Indian Penal Code 4, but many of these were withdrawn in the past
two years.
The rise of Muttalik, a right-wing demagogue, can be traced to the growth of the BJP in the
State. He began his career with the Rashtriya Swayamsewak Sangh (RSS) and the Vishwa Hindu
Parishad (VHP). When the Karnataka chapter of the Bajrang Dal was inaugurated in 1996, he
became its first convener. In his eight-year stint with the organisation hence, he played an active
role in attempts at “liberating” the Bababudangiri shrine in Chickmagalur from Muslim control.
In December 1999, he threatened to capture it if the government did not transfer the management
of the shrine to Hindus and proclaimed that he would make it the “Ayodhya of the South”.
Finding restricted space for his political ambitions in the BJP, he joined the Shiv Sena in 2004.
He quit the Shiv Sena, too, following its leader Bal Thackeray’s anti-Karnataka statements and
founded the Rashtriya Hindu Sena, of which he is the national president. The Rama Sene is the
youth wing of this party.
Hindutva laboratory
The coastal districts of Karnataka, which according to many news reports have become the
laboratory of Hindutva in the State, have provided fertile grounds for the emergence and growth
of organisations such as the Sri Rama Sene in the past two decades. There have been two major
communal riots here, in 1998 and 2006.

4
153A. Promoting enmity between different groups on grounds of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of harmony: -- 
(1) Whoever 
(a) By words, either spoken or written, or by signs or by visible representations or otherwise, promotes or attempts
to promote, on grounds of religion, race, place or birth, residence, language, caste or community or any other ground
whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or
regional groups or castes or communities, or
 (b)       Commits any act which is prejudicial to the maintenance of harmony between different religious, racial,
language or regional groups or castes or communities, and which disturbs or is likely to disturb the public
tranquility, 2[or]
 (c)   Organizes any exercise, movement, drill or other similar activity intending that the participants in such activity
shall use or be trained to use criminal force or violence of knowing it to be likely that the participants in such
activity will use or be trained to use criminal force or violence, or participates in such activity intending to use or be
trained to use criminal force or violence or knowing it to be likely that the participants in such activity will use or be
trained to use criminal force or violence, against any religious, racial, language or regional group or caste or
community and such activity for any reason whatsoever causes or is likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious, racial, language or regional group or caste or community,
 Shall be punished with imprisonment which may extend to three years, or with fine, or with both
The coastal region of Karnataka consists of three districts – Dakshina Kannada, Udupi and
Uttara Kannada. Known for their high literacy rate, the districts are only behind Bangalore in
most social indicators. According to the Karnataka Human Development Report of 2005, the
ranking of Dakshina Kannada, Udupi and Uttara Kannada in the Human Development Index was
2, 3 and 7 respectively from among 27 districts. (Karnataka has 29 districts now after
Chickballapur and Ramnagram were designated districts in 2007.)
The area has a significant number of Muslims and has a historically dominant Catholic presence.
According to an article published by Assadi in Economic and Political Weekly5, the coastal
region “…underwent a complete transformation after the 1970s with the effective
implementation of land reforms, the Gulf boom, the establishment of a large number of new
industries, and the expansion of banking…”. In this changed economic setting, two backward
caste groups, the Billavas and the Mogaveeras, and the relatively dominant Bunt community
competed with the newly affluent Bairy Muslims.
After the demolition of the Babri Masjid in 1992 the area came increasingly under the influence
of the Sangh Parivar, which used the changes in the political economy of the region to convert
the long-standing economic grievances into defined communal identities by casting the Muslim
as the “other”. The vernacular media played their role in furthering the agenda of the Sangh
Parivar.
In September 2008, there were 15 attacks on churches in the region. The following December the
distribution of a Mangalore-based newspaper Karavali Ale was disrupted following its criticism
of the Bajrang Dal. The Bajrang Dal may have washed its hands off the Rama Sene by calling it
the organisation of the renegade Muttalik, but it has been indulging in its own brand of “moral
policing” for the past few years.

5
"Hindu suicide squad spells out its mission". CNN-IBN.  "Yeddy responsible for Talbanisation of K'taka'". Times
Now.  Swapan Dasgupta (1999-02-01). "Balance religious rights with national obligations". India Today. Retrieved
on 2008-11-8. Navtej Sarna (1999-01-16). "In India, Religious Violence Can't Be Excused; Minority
Protections". The New York Times. "Togadia announces new plan for 'religious awakening'". Press Trust of
India. Outlook..
WOMEN’S RIGHTS IN INDIA
Self-appointed guardians of “culture” have routinely targeted women in India because of the
prevailing notion that there are certain boundaries for women in “public spaces”. According
to Women in Modern India by the historian Geraldine Forbes, attitudes to women’s rights in
India began to change in the 19th century with an understanding of European ideas of gender.
Raja Rammohun Roy’s role in questioning the practice of sati, which was legitimized by
religion, was an important step that helped make this change. By the second half of the century,
reformist groups all over the country focused their attention on sati, female infanticide,
polygyny, child marriage and female education. Laws such as the Hindu Widow Remarriage Act
of 1856 could be passed partly because of the efforts of such groups.
During the course of the nationalist movement women got more space to negotiate issues with
regard to their rights. Geraldine Forbes writes that while Mahatma Gandhi did not bring women
into public life he made their presence felt by giving them a blueprint for action. He did this
while assuring the husbands and fathers that these women would not rebel against their families.
Muslim women’s organizations also began to articulate similar demands, as demonstrated by the
work of the historian Gail Minault.
Partition was an important period to understand how notions of “religious nationalism” were
contested over women’s bodies. As Ritu Menon and Kamla Bhasin say in Borders and
Boundaries: Women in India’s Partition, women’s bodies were seen as territory to be marked by
theenemy. 
In post-independent India, the first serious debate about the religious opposition to equal rights
for women took place when Jawaharlal Nehru attempted to pass the Hindu Code Bill. “Towards
Equality”, a report commissioned in 1974 by the Government of India, pointed out the lacunae in
the state’s intention and the results when it came to gender equality. In 1986, Muslim
fundamentalists, with their excessive response to the decision of the Supreme Court to grant
alimony to Shah Bano, exhibited the influence of patriarchal notions over them about women’s
place in society.
NOTIONS OF PATRIARCHY
Notions of patriarchy are still a challenge to the women’s movement in India. In the Mangalore
incident, for instance, a large number of people surveyed by online news portals, newspapers and
TV news channels, though not condoning the excessive methods of the Rama Sene, expressed
their disapproval of women drinking. A conservative element dominates in the thinking of
certain groups of people which is opposed to Western habits.
The manner in which a National Commission for Women (NCW) team led by Nirmala
Venkatesh assessed the situation is perhaps indicative of this line of thinking. The NCW, a
statutory body set up by a Central Act, condemned the Mangalore incident and immediately sent
a team led by the member in charge of South India, Nirmala Venkatesh. She made statements
that almost justified the Rama Sene’s action; she blamed the pub owners for not providing
enough security and recommended that the licence of the pub be cancelled.

THE LIBERTY ASPECT

It is important to note the concept, object and scope of life and personal liberty as enshrined in
Article 21 of the Constitution of India by quoting the observation of Shri K.Ramaswamy, J. in
the case of Kartar Singh v. State of Punjab6, . His Lordship while dealing with the constitutional
validity of the draconian law i.e. Terrorist and Disruptive Activities (Prevention) Act, 1987
observed as under - .The right to life with human dignity of person is a fundamental right of
every citizen for pursuit of happiness and excellence. Personal freedom is a basic condition for
full development of human personality. Article 21 of the Constitution protects right to life which
is the most precious right in a civilised society. The trinity i.e. liberty, equality and fraternity
always blossoms and enlivens the flower of human dignity. One of the gifts of democracy to
mankind is the right to personal liberty. Life and personal freedom are the prized jewels under
Article 19 conjointly assured by Arts. 20(3), 21 and 22 of the Constitution and Article 19 ensures
freedom of movement. Liberty aims at freedom not only from arbitrary restraint but also to

6
MANU/SC/1581/1994
secure such conditions which are essential for the full development of human personality.
Liberty is the essential concomitant for other rights without which a man cannot be at his best.
The essence of all civil liberties is to keep alive the freedom of the individual subject to the
limitations of social control envisaged in diverse articles in the chapter of Fundamental Rights
Part III in harmony with social good envisaged in the Directive Principles in Part IV of the
Constitution. Freedom cannot last long unless it is coupled with order. Freedom can never exist
without order. Freedom and order may coexist. It is essential that freedom should be exercised
under authority and order should be enforced by authority which is vested solely in the
executive. Fundamental rights are the means and the directive principles are essential ends in a
welfare state. The evolution of the State from Police State to a Welfare State is the ultimate
measure and accepted standard of democratic society which is an avowed constitutional
mandate. Though one of the main functions of the democratic Government is to safeguard liberty
of the individual, unless its exercise is subject to social control, it becomes anti-social or
undermines the security of the State. The Indian democracy wedded to rule of law aims not only
to protect the fundamental rights of its citizens but also to establish an egalitarian social order.
The individual has to grow within the social confines preventing his unsocial or unbridled
growth which could be done by reconciling individual liberty with social control. Liberty must
be controlled in the interest of the society but the social interest must never be overbearing to
justify total deprivation of individual liberty. Liberty cannot stand alone but must be paired with
a companion virtue; virtue and morality; liberty and law; liberty and justice; liberty and common
good; liberty and responsibility which are concomitants for orderly progress and social stability.
Man being a rationale individual has to live in harmony with equal rights of others and more
differently for the attainment of antithetic desires. This intertwined network is difficult to
delineate within defined spheres of conduct within which freedom of action may be confined.
Therefore, liberty would not always be an absolute licence but must arm itself within the
confines of law. In other words there can be no liberty without social restraint. Liberty, therefore,
as a social conception is a right to be assured to all members of a society. Unless restraint is
enforced on and accepted by all members of the society, the liberty of some must involve the
oppression of others. If liberty be regarded a social order, the problem of establishing liberty
must be a problem of organising restraint which society controls over the individual. Therefore,
liberty of each citizen is borne of and must be subordinated to the liberty of the greatest number,
in other words common happiness as an end of the society, lest lawlessness and anarchy will
tamper social weal and harmony and powerful courses or forces would be at work to determine
social welfare and order. Thus, the essence of civil liberty is to keep alive the freedom of the
individual subject to the limitation of social control which could be adjusted according to the
needs of the dynamic social evolution. The modern social evolution is the growing need to keep
individual to be as free as possible, consistent with his correlative obligation to the society.
According to Dr.Ambedkar in his closing speech in the Constituent Assembly, the principles of
liberty, equality and fraternity are not to be treated as separate entities but in a trinity. They form
the union or trinity in the sense that to divorce one from the other is to defeat the very purpose of
democracy. Liberty cannot be divorced from equality. Equality cannot be divorced by liberty.
Nor can equality and liberty be divorced from fraternity. Without equality, liberty would not
produce supremacy of law. Equality without liberty would kill individual initiative. Without
fraternity, liberty and equality would not become a natural course of things. Courts, as sentinel
on the qui vive, therefore must strike a balance between the changing needs o the society for
peaceful transformation with orders and protection of the rights of the citizen. One of the
functions of the State is to maintain peace and order in the society. As its part, State is not only
the prosecutor of the offender but also the investigator of crime. To facilitate such investigation
police has been given wide powers to arrest the suspect without warrant, interrogate him in
custody search and seize incriminating material, to collect the evidence and to prosecute the
offender. Deprivation of dignity of person, self-respect and inviolable right to life, would only be
within the prescribed limits set down by laws; assiduously supervised by courts; and executive
excesses strictly be limited. Excessive authority without liberty is intolerable. Equally excessive
liberty without authority and without responsibility soon becomes intolerable. Lest the freedoms
and fundamental rights become sacrificial objects at the altar of expediency. Unrestricted liberty
makes life too easy for criminal and too difficult for law-abiding citizens. In a free society too
many crooks blatantly break the law, blight young lives, traffic in drugs and freely indulge in
smuggling and claim fundamental rights to exploit weak links of law, indulge in violence and
commercial camouflage. Our values are drastically eroded because many a man with no more
moral backbone than a chocolate eclair claim the freedom and free action which results
inevitably in increasing the members of violent criminals. In the midst of clash of interest, the
individual interest would be subservient to social interest, yet so long as jubi jus, ibi remedium is
available the procedure prescribed and the actions taken thereon by then law-enforcement
authority must be the test of the constitutional mandates.
 CR.P.C. AND MORAL POLICING

Section 107 –Section 116

Chapter VIII, provides for security for keeping the peace and for good behaviour. The provisions
in this Chapter which empower courts and Magistrate to obtain security from a person to prevent
him from committing offences in the future are of two kinds. Firstly, security for keeping the
peace, which is contemplated under Sections 106 and 107 of the Code and secondly security for
good behaviour, which is specified in Sections 108 to 110 of the Code. Rests of the chapter
contains procedure and provisions which is set out in Sections 111 and 112 of the Code. There is
no need to go into a detailed analysis of these provisions but I would like to highlight the practice
and procedure which is to be adopted by person holding the post of Special Executive Magistrate
or Executive Magistrate while conducting these proceedings.
Though the incidents of the various proceedings under this Chapter (Sections 106 to 110 of the
Code) differ in material respects, there is one aspect, namely, that all these proceedings have for
their object -the prevention, and not punishment of a crime. The other common aspect of all
these proceedings is that they are not obligatory but confer the discretionary power on the
specified court or magistrate to exercise such power in the specified circumstance being an
interference with the liberty of the individual, such power must be exercised judicially, and
strictly in accordance with the procedure laid down in the relevant sections. The Magistrate must
first himself consider that immediate measures are necessary for the prevention of the breach of
the peace or the disturbance of the public tranquility or then commission of any offence or for
the public safety and then after recording his reasons in writing, direct the person concerned to
execute a bond for keeping the peace, etc. until the conclusion of the enquiry. This postulates
application of his judicial mind by the Magistrate, whose order is subject to judicial scrutiny by
superior Courts of Revision and superintendence. He cannot completely mortgage his decision,
or abdicate his power or surrender his own responsibility in favour of the police, though it would
be well within his competence, in a given case to take into account the police report for what it is
worth in forming his own conclusion on the material legally available to him. But this exercise
must indisputably be seen to be done and the order of the Magistrate must clearly reflect the
application of the Magistrate's own judicial mind to the facts and circumstances properly placed
before him. However, summary the proceedings under Chapter VIII, Cr.P.C., may be considered,
they are judicial proceedings and have to be conducted in accordance with the Code and the
Magistrate holding these proceedings must see that the fundamental elements of the judicial
process find expression in the machinery for administering justice. It is clear that an order under
Sub-section (3) of Section 116of the Code for furnishing of bond can be made only after the
commencement of the enquiry and before its completion, provided the allegations forming the
basis of the parent proceeding or the allegations leading to the necessity for furnishing of interim
bonds are tested by inquiry and judicial mind is applied for ascertaining whether there is prima
facie justifiable basis for such a direction. Sub-section (2) of Section116 provides that the inquiry
is to be as nearly as practicable in the manner prescribed for conducting trial and recording of
evidence in summons cases. Chapter XX of the Code makes provision for trial of summons
cases. Until the allegations are supported by materials so as to satisfy the judicial mind that a
direction for bond is called for, no order for furnishing of a bond can be given. Section 116 of the
Code of 1973 corresponds to Section 117 of the Code of 1898, Sub-section (6) and (7) of the
1973 Code are new provision. Old Sub-section (3) commenced with .pending the completion of
the enquiry.. The new Sub-section (3), however, starts with .after the commencement and before
the completion of the enquiry.. This change has been made so as to put the matter beyond doubt
that an interim bond can be called for only after commencement of the enquiry and before its
completion.

In so far as order under Section 111of the Code is concerned, it enjoins upon the Magistrate to
make an order in writing, setting forth the substance of information received, the amount of the
bond to be executed, term for which it is to be in force, and the number, character and class of
sureties (if any required) and the Magistrate can only proceed to pass an order under
Section 111 of the Code on the basis of substance of the information received by him, which has
to be spelt out in the order, which requires that there must be information of a nature which
convinces him that there is likelihood of a breach of peace. The person, who gave information
might not be in a position to give details, but the source of information might be sufficient to
convince the Magistrate that the breach of the peace was likely and if he was convinced, the law
required him to take action. Needless to say, the substance of information must be setforth in the
order which depends in each case upon the circumstances of the case. Without an order under
Section 111 of the Code, the Magistrate has no competence to deal with such person. In so far
the order which is required to be passed under Section 116(3) of the Code -The provisions of
Section 116(3) clearly mention that the order of interim bond should be passed after recording
reasons therefor. The Magistrate while acting under Sub-section (3) of Section 116, Cr.P.C., has
to make careful consideration as regards to the separate case of emergency as contemplated
under the said section and he must be satisfied that immediate steps are necessary. The fact that
the police report indicated that the members of the opposite-party were likely to create breach of
the peace is not sufficient to pass an order and it cannot be said that the Magistrate has given a
careful consideration to the existence of a case of emergency when he merely relies on a police
report without even calling the police officer to the witness box. An order made under Sub-
section (3) is bad if it is not accompanied by reasons recorded in writing why the Magistrate
wants to take the emergency measures..
The next important thing which is required to be kept in mind by the learned Magistrate is in
relation to the amount of the bond. This should be fixed with due regard to the circumstances of
the case, and must not be excessive. The Magistrate should consider the station in life of the
person concerned, and should not go beyond a sum for which there is a fair probability of his
being able to find security. Imprisonment is provided as a protection to society against the
perpetration of crime by the individual, and not as a punishment for a crime committed, it is only
reasonable and just that the individual should be afforded a fair chance at least of complying with
the required condition of security.
While passing an order under Section 116(3) of the Code, the Magistrate is also expected to be
conscious about the provisions relating to requirements of the bond. Since under new
Section 116(3) of the Code a Magistrate cannot demand any surety bond, in a proceeding
initiated under Section 107 of the Code the question of executing the bond or the liability of
furnishing the surety will no longer arise under the said Section. The relevant provisions of
Section 116 of the Code reads as under:
Section 116 : Inquiry as to truth of information. -
(1) When an order under Section 111 has been read or explained under Section 112 to a person
present in Court, or when any person appears or is brought before a Magistrate in compliance
with, or in execution of, a summons or warrant, issued under Section 113, the Magistrate shall
proceed to inquiry into the truth of the information upon which action has been taken, and to take
such further evidence as may appear necessary.
(2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter
prescribed for conducting trial and recording evidence in summons cases.
(3) After the commencement, and before the completion, of the inquiry under Sub-section (1),
the Magistrate, if he considers that immediate measures are necessary for the prevention of a
breach of the peace or disturbance of the public tranquility or the commission of any offence or
for the public safety, may, for reasons to be recorded in writing, direct the person in respect of
whom the order under Section 111 has been made to execute a bond, with or without sureties, for
keeping the peace or maintaining good behaviour until the conclusion of the inquiry, and may
detain him in custody until such bond is executed or, in default of execution, until the inquiry is
concluded: Provided that -
(a) no person against whom proceedings are not being taken under Section 108, Section 109, or
Section 110 shall be directed to execute a bond for maintaining good behaviour;
(b) the condition of such bond, whether as to the amount thereof or as to the provision of sureties
or the number thereof or the pecuniary extent of their liability, shall not be more onerous than
those specified in the order under Section111. Sub Section (4) onwards not relevant for our
purpose.
In a proceedings initiated under Section 107 of the Code, it is common practice on the part of the
Executive Magistrate to insist for surety bond by passing interim order under
Section 116(3)Cr.P.C. The court has taken judicial notice of this that inspite of a clear cut
provisions in Clause (a) of the proviso to Sub-section 3 of Section 116 of the Code of Criminal
Procedure, in a proceeding initiated under Section 107 of the Code and the form No. 12
(Scheduled II) which is prescribed for executing bond under Section107 of the Code, persons are
detained in judicial custody for their failure to furnish interim surety in a proceedings initiated
under Section 107 of Chapter VIII of the Code in exercise of jurisdiction not vested upon them in
law7. Having clarified the fact that in a proceedings initiated under Section 107 of the Code no
surety/security or personal bond is required to be furnished under an interim order under
Section116(3) Cr.P.C., henceforth if it comes to the notice of this Court that a person against
whom proceedings are initiated under Section 107 of the Code is detained in judicial custody for
7
See State of Maharashtra and Anr. v. Mangali Dewaiyya Pupalla, Mh.L.. 483, Mrs.Pramila Navin Shaha v. State of
Maharashtra and Ors. 2005 All MR (Cri) 1233
failure on his part to furnish interim surety/security Bond or personal Bond pursuant to an order
passed under Section 116(3) of Cr.P.C. The State shall be liable to pay compensation to such
person for violation of his fundamental right enshrined under Article 21 of the Constitution of
India and the aggrieved person may also take recourse to other remedies available to him under
the general law viz to prosecute the said magistrate for wrongful confinement and appropriate
compensation for wrongful detention.

Section 144

Courts should not normally interfere with matters relating to law and order which is primarily the
domain of the concerned administrative authorities. They are by and large the best to assess and
to handle the situation depending upon the peculiar needs and necessities, within their special
knowledge. Their decision may involve to some extent an element of subjectivity on the basis of
materials before them. Past conduct and antecedents of a person or group or an organisation may
certainly provide sufficient material or basis for the action contemplated on a reasonable
expectation of possible turn of events, which may need to be avoided in public interest and
maintenance of law and order. No person, however, big he may assume or claim to be, should be
allowed irrespective of the position he may assume or claim to hold in public life to either act in
a manner or make speeches which would destroy secularism recognised by the Constitution of
India, 1950 (in short the 'Constitution'). Secularism is not to be confused with communal or
religious concepts of an individual or a group of persons. It means that State should have no
religion of its own and no one could proclaim to make the State have one such or endeavour to
create a theocratic state. Persons belonging to different religions live throughout the length and
breadth of the country. Each person whatever be his religion must get an assurance from the
State that he has the protection of law freely to profess, practice and propagate his religion and
freedom of conscience. Otherwise, the rule of law will become replaced by individual
perceptions of ones own presumptuous good social order. Therefore, whenever the concerned
authorities in charge of law and order find that a person's speeches or actions are likely to trigger
communal antagonism and hatred resulting in fissiparous tendencies gaining foot hold
undermining and affecting communal harmony, prohibitory orders need necessarily to be passed,
to effectively avert such untoward happenings.
Communal harmony should not be made to suffer and be made dependent upon will of an
individual or a group of individuals, whatever be their religion be it of minority or that of the
majority. Persons belonging to different religions must feel assured that they can live in peace
with persons belonging to other religions. While permitting holding of a meeting organised by
groups or an individual, which is likely to disturb public peace, tranquility and orderlines,
irrespective of the name, cover and methodology it may assume and adopt, the administration
has a duty to find out who are the speakers and participants and also take into account previous
instances and the antecedents involving or concerning those persons. If they feel that the
presence or participation of any person in the meeting or congregation would be objectionable,
for some patent or latent reasons as well as past track record of such happenings in other places
involving such participants necessary prohibitory orders can be passed. Quick decisions and
swift as well as effective action necessitated in such cases may not justify or permit the
authorities to give prior opportunity or consideration at length of the pros and cons. The
imminent need to intervene instantly having regard to the sensitivity and perniciously perilous
consequences it may result in, if not prevented forthwith cannot be lost sight of. The valuable
and cherished right of freedom of expression and speech may at times have to be subjected to
reasonable subordination of social interests, needs and necessities to preserve the very chore of
democratic life - preservation of public order and rule of law. At some such grave situation at
least the decision as to the need and necessity to take prohibitory actions must be left to the
discretion of those entrusted with the duty of maintaining law and order, and interposition of
Courts - unless a concrete case of abuse or exercise of such sweeping powers for extraneous
considerations by the authority concerned or that such authority was shown to act at the behest of
those in power, and interference as a matter of course and as though adjudicating an appeal, will
defeat the very purpose of legislation and legislative intent. It is useful to notice at this stage the
following observations of this Court in the decision reported in Madu Limaye v. Sub Divisional
Magistrate, Monghyr and Ors.8  The gist of action under Section 144 is the urgency of the
situation, its efficiency in the likelihood of being able to prevent some harmful occurrences. As it
is possible to act absolutely and even ex parte 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

8
MANU/SC/0147/1970
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, Criminal Procedure Code cannot be passed without taking evidence. 9
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. 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 the 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.

CONCLUDING OBSERVATIONS

The moral argument is often used to dissuade a woman from exercising her will. If a woman is
promiscuous she is labelled a slut but a man is called a stud for the same. The moral connotations
apply only to the woman. Modesty and chastity are two virtues a woman’s morality is judged on.
Both of them aim at controlling a woman’s sexuality. The same test of morality is not applied to
a man.
Yet moral policing is often justified on the grounds of protecting women. For instance imposing
dress code in colleges. Female students are told to dress modestly to discourage eve teasing and
sexual abuse. It makes a convincing argument as it reinforces stereotypes. A man is born with
needs and has no control on his actions. He will molest a woman if she dresses in an
‘inappropriate’ manner. It is easy to blame the victim. If the victim is female casting aspersions
on her moral character makes the deal easier. The perpetrator is absolved of responsibility for his
action. The argument reduces men to animals who have no rational control over their actions. A
little show of skin is enough to make them commit sexual crimes.This enables the moral police

9
Mst. Jagrupa Kumari v. Chobey Narain Singh (37 Cl.L.J. 95)
to impose restrictions on a woman’s dress and conduct. Individual liberty is suppressed in the
name of protecting the individual.
The Indian state uses the same logic to make laws that go against personal freedom. Maharashtra
government imposed a ban on bar dancing. They claimed bars have a corrupting influence on
public morals. The government also tried to portray bar dancers as morally deviant women of
loose character. Dance is a creative expression and we have been guaranteed freedom of
expression by the constitution. These women danced to earn money. They have a right to choice
of profession. Dancing is not illegal. Moreover they are not forcing people to see their
performance. They cater to a niche of willing audience. Their right to livelihood is jeopardized
by the law.
The government overlooked these facts in name of protecting public morals. The question is who
defines public morals? Even if majority of people think that bar dancing is an immoral activity,
should it be banned? Should majority values be imposed on everyone? We are a democracy.
Democracies thrive on dissent and diversity. It is unfortunate that the state chose to ignore this in
its moral campaign.
A distinction between private and public is often made to mark the sphere of state authority and
societal sanction. All civilised nations accept a person’s right to conduct his/her personal affairs
independent outside intrusion. However we often see our personal conduct being judged on
generalised moral principles. This is what happened in Meerut. Police assaulted young couples
for meeting in a public park. They called it ‘Operation Majnu’ and attempted to justify it in name
of stopping eve teasing. Actually they beat up couples present in the park in full media glare.
They defended it in name of protecting the sanctity of a public space. They claimed public
display of affection even by mutual consent was immoral and thus punishable. By large the
action was condemned. Yet many people while condemning the police violence condoned the
need for educating the youth against western cultural influence.
What is western cultural influence? Is it a man meeting a woman in a public place? The moral
police seem to think so. Thus they chose to make an event out of a common occurrence in
Meerut. If we were to extend this same logic even love can look like something we imported
from the west. The idea seems ridiculous but if you ask a moral policeman he might tell you
Indian concept of love indeed is different. Perhaps that is why self-appointed moral policemen
went on harassing young couples in Mumbai on Valentines Day.
On a serious note moral policing is often justified in name of protecting our culture.
Globalisation and media are blamed for promoting Western values. Emphasis on individuality of
cultures and resistance to modernity perceived as western cultural hegemony is getting stronger.
This sentiment is often expressed in terms of ‘our culture against their culture’. Amartya Sen in
his book, ‘The Argumentative Indian’ says, “The growing tendency in contemporary India to
champion the need for an indigenous culture that has ‘resisted’ external influences lacks
credibility and cogency.”
Individual liberty is seen as centred in Western cultural thought while Indian culture is based up
on communitarian values. Yet many examples from history state otherwise. Ashoka in
3rd century talked about universal rights. Sen feels, alleged sharp contrast between Western and
Indian traditions are based on very poor history.
India is home to diverse cultural traditions. Even these cultural communities are not internally
consistent and local customs differ. Thus a pan Indian culture will always be based on over
generalisations. There is no homogeneous Indian culture. Besides communitarian classification is
based on a particular criteria. It can be religion, caste, class, region and various other categories.
Each can yield different results. Thus those who talk of preserving Indian culture capitalise on a
few of these and ignore others.
Sen says, “Our decisions about the future need not be parasitic on the type of past we have
experienced but what will make sense in contemporary India.” We are living in a globalised
world. It gives us the opportunity to take the best from everywhere without losing what we have.
Democracy is seen as a western form of governance. It does not means we should go back to
monarchy.
Moral policing is a threat to individual liberty. It also threatens cultural diversity. Indian culture
is reduced to dominant values. Individual conduct is being judged up on generalised behaviour
ideals. It has successfully used state coercion to its advantage. It is time to fire the self appointed
moral policemen and embrace freedom.
Our country is the world's most heterogeneous society, with rich heritage and our Constitution is
committed to high ideas of socialism, secularism and the integrity of the nation. As is well
known, several races have converged in this sub-continent and they carried with them their own
cultures, languages, religions and customs affording positive recognition to the noble and ideal
way of life - 'Unity in Diversity'. Though these diversities created problems, in early days, they
were mostly solved on the basis of human approaches and harmonious reconciliation of
differences, usefully and peacefully. That is how secularism has come to be treated as a part of
fundamental law, and an unalienable segment of the basic structure of the country's political
system. As noted in  S.R. Bommai v. Union of India10 freedom of religion is granted to all
persons of India. Therefore, from the point of view of the State, religion, faith or belief of a
particular person has no place and given no scope for imposition on individual citizen.
Unfortunately, of late vested interests fanning religious fundamentalism of all kinds vying with
each other are attempting to subject the constitutional machineries of the State to great stress and
strain with certain quaint ideas of religious priorities, to promote their own selfish ends,
undetterred and unmindful of the disharmony it may ultimately bring about and even undermine
national integration achieved with much difficulties and laudable determination of those strong
spirited savants of yester years. Religion cannot be mixed with secular activities of the State and
fundamentalism of any kind cannot be permitted to masquerade as political philosophies to the
detriment of the larger interest of society and basic requirement of a welfare State. Religion sans
spiritual values may even be perilous and bring about chaos and anarchy all around. It is,
therefore, imperative those if any individual or group of persons, by their action or caustic and
inflammatory speech is bent upon sowing seed of mutual hatred, and their proposed activities are
likely to create disharmony and disturb equilibrium, sacrificing public peace and tranquility,
strong action, and more so preventive actions are essentially and vitally needed to be taken. Any
speech or action which would result in organization of communal harmony would destroy all
those high values which the Constitution aims at. Welfare of the people is the ultimate goal of all
laws, and State action and above all the Constitution. They have one common object, that is to
promote well being and larger interest of the society as a whole and not of any individual or
particular groups carrying and brand names. It is inconceivable that there can be social well
being without communal harmony, love for each other and hatred for none. The chore of religion
based upon spiritual values, which the Vedas, Upanishad and Puranas were said to reveal to
mankind seem to be - "Love others, serve others, help ever, hurt never" and "Sarvae Jana
Sukhino Bhavantoo".

REFERENCES

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MANU/SC/0444/1994 
BOOKS REFERRED:

 D. N. Sen, The Code of Criminal Procedure, 1973, Premier Publishing Co., 2004.

 C. H. Sohoni & P. Nagaratnam, Sohoni’s Code of Criminal Procedure, 1973, 18 th ed., Law
Book Co., 1986.

 P. N. Aiyar & J. K. Mathur, MLJ's P. Ramanatha Aiyar's Code of Criminal Procedure, 7 th ed.,
Modern Law Publications, 2001.

 Ratanlal Ranchodas et al, Ratanlal & Dhirajlal's the Code of Criminal Procedure, 17 th ed.,
Wadhwa and Nagpur Publications, 2005

WEBSITES REFERRED:

 www.manupatra.com

 www.indlaw.com