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TMI Blog1970 (10) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, for intervener No. 8. Hidayatullah C.J. During the hearing of these petitions the constitutional validity of s. 144 and Chapter VIII of the Code of Criminal Procedure was challenged and this Special Bench was nominated to consider the issue. Lengthy arguments were addressed to us by the petitioner and several interveners. The matter, as we shall show later, lies in a narrow compass. At the end of the arguments we announced our conclusion that the said provisions-of the Code, properly understood, were not in excess of the limits laid down in the Constitution, for restricting the freedoms guaranteed by Art. 19 (1) (a) (b) (c) and (d) We reservedour reasons and now we proceed to give them. We are required to test the impugned provisions against the first four sub-clauses of the first clause of the nineteenth article. We may accordingly begin by reading the sub-clauses 19. (1) All citizens shall have the right- (a) to freedom of speech and expression; (b) to assemble Peaceably and without arms; (c) to form associations or union; and (d) to move freely throughout the territory of India; These sub-clauses deal with four distinct but loosely related topics. They preserve ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns on the exercise of the right conferred by the said sub-clause. (4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and (5) Nothing in sub-clause (d), (e) and (f ) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe." All that is necessary to be decided by us is whether these clauses save the impugned provisions of the Code as reasonable, and valid restrictions upon the guaranteed freedoms. Before we proceed to do so, we may dispose of a very ingenious argument by Mr. A. S. R. Chari which may be summarised thus: "The original clause (2) had to be read on the commencement of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclipse is considered in relation to provisions of laws declared void by Courts in the interval. That reasoning ex facie cannot apply to this case. The result, therefore, is that we are only required to discuss whether the provisions of S. 144 and Chapter VIII of the Code can be said to be in the interests of public order in so far as the rights of freedom of speech and expression, rights of assembly and formation of associations and unions are concerned and in the interests of the general public in so far as they curtail the freedom of movement throughout the territory of India. In this connection only two topics arise for close study. Firstly what is meant by the expressions "in the interest of public order" occurring in cls. (2), (3) and (4) and "in the interests of the general public" occurring in cl. (5). Secondly to what extent the provisions of s. 144 and Chapter VIII come within the protection. In so far as s. 144 of the Code is concerned this Court in Babulal Parate v. State of Maharashtra,((1961) 3 S.C.R. 423.) had held that the section was intra vires the Constitution but doubts were raised because the judgment of this Court spoke in terms of in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by Justices Black and Douglas in recent) years after the deaths of Justices Murphy and Rutledge in 1949. Its history is given by Justice Frankfurter in his concurring opinion in Kovacs v. Cooper((1949) 336 U.S. 77), in which he rejected it. Justice Rutldege, in Thomas v. Collins((1944) 323 U.S. 516.) stated it in these words: "This case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the States' power begins Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable freedoms secured by the first Amendment. That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er fell to be considered in relation to 'public order. In Ramjilal Modi v. State of Uttar Pradesh([1957] S.C. R.860.) it was pointed out that the language employed by the Constitution, that is to say, 'in the interest of' was wider than the expression 'for the maintenance of' and the former expression made the ambit of the protection very wide. It was observed that 'a law may not have been designed to directly maintain public order and yet it may have been enacted in the interest of public order'. This was , again reaffirmed in Virendra v.State of Punjab([1958] S.C.R. 308. ) distinguishing on the same ground the two cases before the First Amendment. The following passage (p. 323) may be quoted: "It will be remembered that Art. 19(2), as it was then worded, gave protection to a law relating to any matter which undermined the security of or tended to overthrow the State. Section 9(1-A) of the Madras Maintenance of Public Order was made 'for the purpose of securing public safety and the maintenance of public order'. It was pointed out that whatever end the impugned Act might have been intended to subserve and whatever aim its framers might have had in view, its application and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpression 'Public order' was inserted in Art. 19 (2) of the Constitution by the Constitution (First Amendment) Act, 1951, with a view to bring in offences involving breach of purely local significance within the scope of permissible restrictions under cl. (2) of Art. 19". He quoted the observations of the Supreme Court of the United States in Cantwell v. Connecticut((1940) 310 U.S. 296.) to establish that offences against 'Public order' were also understood as offences against public safety and public peace. He referred to a passage in a text-book on the American Constitution which states : "In the interests of public order the State may prohibit and punish the causing of 'loud and raucous noise, in streets and public places by means of sound amplifying instruments, regulate the hours and place of public discussion, and the use of the public streets. for the purpose of exercising freedom of speech; provide for the expulsion of hecklers from meetings and assemblies, punish utterances tending to incite an immediate breach of the peace or riot as distinguished from utterances causing mere 'public inconvenience, annoyance or unrest'." He referred also to the Public Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained above but not acts which disturb only the serenity of others. The English and American precedents and legislation are not of much help_. The Public Order Act 1936 was passed because in 1936 different political organisations marched in uniforms causing riots. In America the First Amendment freedoms have no such qualifications as in India and the rulings are apt to be misapplied to our Constitution. In the next case of this Court reported in Dr. Ram Manahar Lohia v. State off Bihar & Ors.([1966] 1 S.C.R. 709.) it was pointed out that for expounding the phrase 'maintenance of public order' "One has to imagine three concentric circles. Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the State". All cases of disturbances of public tranquillity fall in the largest circle but, some of them are outside 'public order' for the purpose of the phrase 'maintenance of public order', similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the State. Adopting this test we may say that the State is at the centre and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent cases of nuisance or apprehended danger. Such orders may be made by specified classes Magistrates when in their opinion there is sufficient ground proceeding under the section and immediate prevention or speedy remedy is desirable. It requires the Magistrate to issue his order in writing setting forth the material facts of the case the order is to be served in the manner provided by s. 134 of the Code. The order may direct : (A) Any person to abstain from a certain act, or (B) to take certain order with certain property in his possession or under his management. The grounds for making the order are that in the opinion of the Magistrate such direction (a)is likely to prevent or (b) tends to prevent, (i) obstruction (ii) annoyance or (iii) injury, to any person law fully employed or (iv) danger to human life, health or safety o(v) a disturbance of the public tranquillity or (vi) a riot o (vii) an affray. Stated briefly the section provides for the making of an which is either prohibitory (A) or mandatory (B) as above. Its efficacy is that (a) it is likely to prevent or (b) tends to prevent, some undesirable happenings. The gist o these happenings are (i) obstruction, annoy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e : see Mst. Jagrulia Kumari v. Chobey Narain Singh (37 Cr. C.J. 95.) which in our opinion is correct in laying down this proposition. Tese fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human fife, 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 thus part need not be decided here. In so far as the other parts of the section are conceded 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 restrictions which the Constitution itself visualises 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medies for which there is ample provision in the law. All these matters were considered also by this Court in Babulal Parate's case((1961) 3 S.C.R. 423.). In that case the Court emphasised that the restraint is temporary, the power is exercised by senior Magis-trates who have to set down the material facts, in other words, tomake an inquiry in the exercise of judicial power with reasons for the order, with an opportunity to an aggrieved person to haveit rescinded either by the Magistrate or the superior Courts. We have reconsidered all these matters and are satisfied that there are sufficient safeguards available to person affected by the order and the restriction-, therefore are reasonable. We are of opinions that s.144 is not unconstitutional if properly applied and the fact that it may be abused is no ground for striking it -down. The remedy then is to question the exercise of power as being outside the grant of the law. We next proceed to consider the constitutional validity of' Chapter VIII of the Code. It finds place in Part IV which has the explanatory heading 'Prevention of Offences'. The Chapter is divided into three divisions A, B and C. The purport of the Chapter can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in custody or before the court) with a view to sending him before a Magistrate empowered to deal with the case, together with a copy of his reasons. The Magistrate before whom such a person is sent may in his discretion detain such person in custody pending further action by him. The section is aimed at persons who cause a reasonable apprehension of conduct likely to lead to a breach of the peace or disturbance of the public tranquillity. This is an instance of preventive justice which the courts are intended to administer. This provision like the preceding one is in aid of orderly society and seeks to nip in the bud conduct subversive of the peace and public tranquillity. For this purpose Magistrates are invested with large judicial discretionary powers for the preservation of public peace and order. Therefore the justification for such provisions is claimed by the State to be in the function of the State which embraces not only the punishment of offenders 'but, as far as possible, the prevention of offences. Both the sections are counter-parts of the same policy, the first applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 113 deals with the situation when the person is present in court, then the order shall be read over to him and if he so desires, the substance of it shall be explained to him. This is not a mere formality. The intention is to explain to the person what the allegations against him are. The next section (S. 114) deals with a situation when the person is not present in court. There the options two-fold. Ordinarily, a summons must issue to him but in cases where the immediate arrest of the person is necessary a warrant for his arrest may issue. This is however subject to the qualification that there must be a report of a Police Officer or other information in that behalf and the breach of the peace cannot otherwise be prevented. The Magistrate must not act on an oral information but must record the substance of it before issuing a warrant. The section also envisages a situation in which the person is already in custody. In that case the Magistrate shall issue a warrant directing the Officer having the custody to produce that person. The provisions of this section. are quite clearly reasonable in the three circumstances it deals with. If the presence of the person is to be secured, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere the person is not in custody and his being at large without a bond may endanger public safety etc. 'The Magistrate has to justify his action by reasons to be recorded in writing. If the person fails to execute a bond, with or without sureties, the Magistrate is empowered to detain him in custody. A question was raised before us whether the Magistrate can defer the inquiry and yet ask for an interim bond. There is a difference of opinion in the High Courts. Some learned Judges are of opinion that this action can be taken as soon as the person appears because then the Magistrate may be said to have entered upon the inquiry. Other learned Judges are of the opinion that sub-ss. (1) and (2) envisage that the 'Magistrate must proceed to inquire into the truth of the information and only after prima facie satisfying himself about the truth 1 and after recording his reasons in writing can the interim bond be asked for. Some of the cases on the previous view are-Emperor v. Nabibux & Ors.(A I.R. 1953 Cal. 238.), Dufal Chandra Mondal v. State( A.I.R 1942 Sind 86. ) Gani Ganjai and Ors. v. State(A.I.R. 1959 J & K 125.) and Laxmilal v. Bherulal(A.I.R 1958 Rai. 349). Those representing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is drafted today is hedged in with proper safeguards and it would be moving too far away from the guarantee of freedom, if the view were allowed to prevail that without any inquiry into the truth of the information sufficient to make out a prima facie case a person is to be put in jeopardy of detention. A definite finding is required that immediate steps are necessary. The order must be one which can be made into a final order unless something to the contrary is established. Therefore it is not open to a Magistrate to adjourn the case and in the interval to send a person to jail if he fails to furnish a bond. If this were the law a bond could always be insisted upon before even the inquiry began and that is neither the sense of the law nor the wording or arrangement of the sections already noticed. The power which is conferred under this Chapter is distinguished from the power of detention by executive action under Art. 22 of the Constitution. Although the order to execute a, bond, issued before an offence is committed, has the appearance of an administrative order, in reality it is judicial in character Primarily the provision enables the Magistrate to require the execution of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a person so detained when there is no longer any hazard to the community or to any other person. There are other provisions for reducing security etc. with which we are not conceded. Section 125 enables the same Magistrates to cancel any bond for sufficient reason and under s. 126 the sureties also stand discharged. Section 126A deals with security for the unexpired period of bond to which no special reference is needed. The gist of the Chapter is the prevention of crimes and dis turbances of public tranquillity and breaches of the peace. There is no need to prove overt acts although if overt acts have taken place they will have to be considered The action being preventive is not based on overt act but on the potential danger to be averted. These provisions are thus essentially conceived in the interest of public order in the sense-defined by us. They are ,also in the interest of the general public. If prevention of crimes, and breaches of peace and disturbance of public tranquillity are directed to the maintenance of the even tempo of community life. there can be no doubt that they are in the interest of public order. As we have shown above 'Public order' is an elastic expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under section 107 of the Code of Criminal Procedure, the Magistrate can direct the person, in respect of Whom an order under Section 112 has been made, to execute a bond , with or without sureties, for keeping the peace pending completion of the enquiry and, in default, detain him in custody until such bond is executed, only after he has entered upon the enquiry under section 1 17 (1) and has found a prima facie case satisfying himself about the truth of the information on the basis of which the proceedings were started. 'This interpretation, in my opinion, will completely defeat the purpose of section 117(3). It has to be noticed that, when proceedings are contemplated under section 107, the Magistrate takes action when he is informed that any person is likely to commit a breach of the peace or disturb the public tranquillity, only after forming an opinion that there is sufficient ground for proceeding against him. The Magistrate cannot start the proceedings merely because of the information received by him. Pursuant to the information, the Magistrate has to form his opinion that there is sufficient round for proceeding. This opinion can be formed on the basis of the informati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immediate arrest of such person; in such case-,, the Magistrate can issue a warrant for the arrest of that person. It is under this procedure that the person appears or is brought before the Court. The proceedings to be take thereafter are laid down in section 117(1) which requires that, as soon as the order under s. 112 has been read or explained to the person present in Court under s. 113, or to the person who appears or is brought before a Magistrate under s. 114, the Magistrate has to proceed to enquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. This inquiry under sub-s.(2) of s. 117 has to be held in the manner prescribed for conducting trials and recording evidence. in summons cases. Sub-s. (1) of section 117, thus, contains a -mandatory direction on the Magistrate to start proceedings of inquiry as soon as the person, in respect of whom the order under s. 112 has been made, appears before the Magistrate. 'Section 117(1) makes it clear that the Magistrate must institute the inquiry without any unnecessary delay. This provision cannot, however, be interpreted as requiring that the inquiry must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peace pending completion of the inquiry under s. 117(1) and, if he fails to execute the bond, the Magistrate can direct his detention until the enquiry is concluded. This power to be raised by the Magistrate in emergent cases has been conferred in the background of the procedure which he has to adopt under section 107 of forming an opinion, after receipt of information, that there do exist sufficient grounds for taking proceedings. At the first stage, when forming such opinion, the Magistrate naturally acts ex parte and has to rely on information supplied to him or other information obtained by him in the absence of the person againct whom proceedings are to be taken. It is on the basis of that opinion that the Magistrate proceeds to make the order under s. 112 and is empowered even to issue a warrant of arrest under the proviso to section-114. The power under s. 117(3) is most likely to be invoked in cases where the Magistrate has, at an earlier stage, issued the warrant under the, proviso to s. 114. This is so because 'the warrant is issued in cases where breach of the peace cannot be prevented otherwise than by immediate arrest, and S. 117(3) also is to be invoked where the,Mag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very similar and is intended to ensure that the person, from whom breach of the peace is apprehended, is not at liberty to commit breach of the peace and thus defeat the purpose of the proceedings by being allowed to remain at liberty without any undertaking during the pendency of the inquiry. In this connection, it was urged by Mr. Garg that, if S. 117(3) is interpreted as permitting a Magistrate to direct furnishing of bonds for keeping the peace and to order detention in default without any evidence being obtained in the course of the inquiry, the Magistrate may keep on adjourning the hearing of the inquiry under s. 117(1) and thus, keep the person in detention for long periods without giving him the opportunity of showing that there is no justification for orders being made against him. In my opinion, the validity of a provision of this nature is not to be judged from the likelihood of the abuse of the power by the Magistrate. If the Magistrate. rafter making orders under s. 117(3), unnecessarily postpones the inquiry, he would, in my opinion, be not only abusing his powers, but will be acting contrary to the mandate of the law contained in s. 117(1) itself which, as I have i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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