SCOPE OF SECTION 144 CR.

PC

In the case of Radhe Das v. Jairam Mahtothe1 dispute was over a piece of property. The
petitioners applied for restriction on the respondent from entering the property, which
was ordered by the Magistrate under Section 144. However, while the judicial proceedings
were in way the respondents too claimed for the same prohibition on the petitioners, which
was subsequently granted by the Magistrate under the same section.

The respondents in response to this order brought the present action on the ground that
their right over the property was being violated by the order. The court held that if the
situation demands any action, then for prevention of public peace and tranquility, the
individual rights of a person can be renounced for the greater benefit of the society at
large.

In the words of:

"To give jurisdiction under this section, the Magistrate shall be of opinion that
immediate prevention or speedy remedy is desirable and that the direction he proposes
to make is likely to prevent a disturbance of the public tranquility or a riot or an affray.
In such circumstances private rights must give way."

The principles that must be borne in mind before the application of this section has also been
elaborated upon in the case of Gulam Abbas & Ors vs State Of U.P.2 They are:

1. Urgency of the situation and the power is to be used for maintaining public peace and
tranquility
2. Private rights may be temporarily overridden when there is a conflict between public
interest and private rights
3. Questions of title to properties or entitlements to rights or disputes of civil nature
are not open for adjudication in a proceeding under section 144.
4. Where those questions have already been decided by the civil courts or by
judicial pronouncements, the Magistrate should exercise their power under

1
123 Ind Cas 73
2
1981 AIR 2198
 section 144 in aid of those rights and against those who interfere with the lawful
exercise thereof.
5. The consideration should not be that restriction would affect only a minor section of
the community rather that a large section more vociferous and militant.

REPETITIVE ORDER UNDER SECTION 144 IS AN ABUSE OF POWER

An order under section 144 cannot be of a permanent or a semi-permanent nature. This was
held in the case of Acharya Jagdisharanand Avadhut v. Police Commissioner, Calcutta
where the Anand Margis were prohibited from conducting Tandava dance on the streets or
carry skulls in their processions, by an order of the Commissioner under section 144 of the
code. The first order lasted for two months and then after every gap of two months the
Commissioner again issued the same order. This repetition of order was challenged.

The Supreme Court held this act of the Commissioner as an abuse of power and stated on
page 58 that:

"the Parliament never intended the life on 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 when individual
disputes are raised. If repetitive orders are made it would clearly amount to abuse of
the power conferred by section 144 of the Code."

SECTION 144 NOTICE IS SUBJECT TO JUDICIAL REVIEW

Anuradha Bhasin V. Union Of India; (2020) 3 SCC 637

“orders passed under Section 144, Cr.P.C. have direct consequences upon the

fundamental rights of the public in general. Such a power, if used in a casual and
cavalier manner, would result in severe illegality. This power should be used
responsibly, only as a measure to preserve law and order. The order is open to
judicial review, so that any person aggrieved by such an action can always approach
the appropriate forum and challenge the same. But, the aforesaid means of judicial
review will stand crippled if the order itself is unreasoned or unnotified.”

“An order passed under Section 144, Cr.P.C. should state the material facts to
enable judicial review of the same. The power should be exercised in a bona fide and
reasonable manner, and the same should be passed by relying on the material facts,
indicative of application of mind. This will enable judicial scrutiny of the aforesaid
order.”