STATE OF BIHAI.. v. K. K. MISRA & ORS. October 29, 1969 [J. C. SHAH, J. M. SHELAT, C. A. VAIDIALINGAM, K. S. HEGDE AND A. N. RAY, JJ.] c Cade Of Criminal Procedure, 1898 (Act 5 of 1898), ss. 144(6)- Validity-Whether violates sub-els. (b), (c) and (d) of cl. (1) of Art. 19 of the Constitution of India 1950.
Sub-section ( 6) of s. 144 of the Code of Criminal Procedure provides th.at no order under s. 144 "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. The City Magis- trate of Jamshedpur passed <>rders under s. 144(1) against the respon- dents which were later extended by the State Government of Bihar in exercise of its powers under s. 144 ( 6) . In a writ petition tiled by the
respondents the High Court of Patna struck down the second part of sub· s. (6) of s. 144 as beio.g violative of sub-els. (b), (c) and (d) of cl. (1) of Art. 19 of the Constitution.
The State appealed and contended that the only operative orders were those made by the Magistrate and the Government merely extended those orders. Further, since the order of the Government got merged in the ord"ers of the Magistrate, the extended order was open to i'eview under sub-s. ( 4) of s. 144 and the same was also revisable unde• s. 435 read with s. 439 of the Code of Criminal Procedure.
HELD : Per Shelat, Vaidialingam, Hedge and Ray, JJ.-(i) The Magistrate's order is no doubt the basic order. But after the process in the first five sub-sections of s. 144 is completed
he becomes functus officio. The decision that the circumstances mentioned in sub-s. (6) of s. 144 Criminal Procedure Code continue to exist and the original order should be continued is that of the Government.
It is not a case of the Government order getting merged in the Magistrate's order. Rather the Magistrate's order is adopted by the Government as its own order. [194 A-C] The order of the Government is made in the name of the Governor and signed by a Secretary to the Government.
It is published in the Official Gazette. It is thus clearly an executive act of the Government coming within Art. 166 of the Constitution. If the direction given under s. 144(6) is intended to merely keep alive a judicial order, the legislature \VOuld have entrusted that function to a judicial authority as has been done in the case of an order under s. 144( 1). [194 E-F)
Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate subordinate to him or by a predecessor in office. It is not
possible to bring within the scope of this section the order made by the State Government. for if it was sr intended it would have been mentioned in the section. [194 G] From a plain reading of s. 144(6) it is clear that the power conferred on the Government is an. independent executiv_e powe~, n~t expecte~ to be exercised ;udicially. It is open to be exercised arb1tranly. The direc- tions given in the exercise of that power need not be of a temporary nature. The ambit of that power is very large and is uncontrolled. [195 BJ (ii) The fact that the Legislature is expected to keep a check on governmental actions does not absolve this Court's responsibility. The
fundamental rights constitute a protective shield to the citizen as against State actions and the Court cannot de_sert its duty on the assumption that the other organs of the State would safeguard the fundamental right of the citizens. [195 C-D]
(iii) In order to be a reasonable restriction within the meaning of .f\.rt. 19 of the constitution the same must not be arbitrary or excessive and the procedure and the manner of its imposition must also be fair and just.
Any restriction which is opposed to the fundamental principles of liberty and justice cannot be considered reasonable. One of the im- pdrtant tests to find out whether a restriction is
reasonable is to see whether the aggrieved party has a right of representation against the res- triction imposed or proposed to be imposed. Further the courts have to see whether it is in exce·ss of the requirement Or imposed in an arbitrary manner.
Although the object of a restriction may be beyond reproach and may very well attract the protection of sub-Arts1 I to 6 or Art. 19, if the State fails to provide sufficient safeguards
against its misuse the operative sections will be rendered invalid. [196 C-FJ Since section 144(6) gives the power to impose the restrictions con- templated by it to the executive Government and not to a judicial autho- rity and there is no right of representation, appeal or_ revision given to the aggrieved party against an order which may not be of a tempolrary nature, it must be held that the said impugned pr~sion is violative of Art. 19(1)(b) (c) and (d) and is not saved by Arts. 19(3) (4) or (5). [196 GJ
Babu/al Parate v. State of Maharashtra and Ors. p961] 3 S.C.R. 423, referred to. State of Madras v. V. G. Rco, [1952] S.C.R. 597; Dr. KharP v. State of Delhi, [1950) S.C.R. 519; State of Madhya Pradesh v. Baldeo Pra.'iad, [1961] I S.C.R. 970 and Virendra v. State of Punjab, [1958] S.C.R. 308, applied.
Per Shah, J. (dissel!ling). Sub-s. (6) of s. 144 does not authorise the State Government to make the order of the Magistrate pe'rmanent. It cannot direct it to ~ontinue after apprehension of danger or emergency ceases. The validity of a statute conferring power is not open to challenge on the plea that the power may possibly b-e abused by the authority in which it is vested.
The ordelr, duration of which is extended by declaration of the State, is and continues to remain that of the Magistrate. The source of the authority of the order is derived not from the State Government, but from the Magistrate.
It cannot be said that the order of the Magistrate gets merged with that of the Gove'rnment when its duration is extended. Although no provision is made in the Code for a judicial review of the State Government's order under s. 144(6), the said order does not depend on the subjective satisfaction of the Government and is capable of being challenged in a petition under Art. 226 of the Constitution. Further the Magistrate who passed the original order may in considera- tion of the materials placed before him under s. 144(4) rescind or alter the State Government's order.
In the exercise of his judicial functions BIHAR STATE V. K, K. MISRA (Shah, J.) the Magistrate is independent of the Government and not subordinate to it. The pfinciple applies even in the case of an Executive Magistrate who under .the sche~e. of separation of' powers may
be responsible to the executive authonues. The above remedies being available th< provision in s. 144(6) cannot be h.e~d t~ be unreasonable on the mere ground that there is no express prov1s1on 10 the Code for redress against the State Government's order. Reaso·nableness of a statutory provision cannot be
determined by the application of set fonnulas : it must be determined on a review of the procedural and substantive provisions of the statute keeping in minJ the nature of the right intended to be infringed, underlying purpcse of the restriction contemplated to be imposed, gravity of the evil intendi!d tiJ be rem~di~d thereby, object intended
to be achieved by the impositi0a of restnctton, and other relevant circumstarv:es. [185 D, G 188 B-D] Case-law referred to. CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21 of 1966.
Appeal from the judgment and order dated January 22, 1962 of the Patna High Court in Misc. Judicial Case No. 757 of 1961. D. Goburdhun, for the appellant. M. K. Ramamurthi, for the respondents.
B. Sen and S. P. Nayar, for intervener No. 1. L. M. Singhvi and S. P. Nayar, for intervener No. 2. The Judgment of J. M. SHELAT, c. A. VAIDIALJNGAM, K. s. HEGDE and A. N. RAY, JJ .. was delivered by HEGDE, J., SHAH, J. delivered a dissenting Opinion.
Shah, J.-The High Court of Patna has declared the second part of sub-s. ( 6) of s. 144 of the Code of Criminal Procedure 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 Gov- ernment extending the duration of an order under s. 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. Section 144 is enacted to provide for making temporary orders in urgent cases of nuisance or apprehended danger, where imme- diate 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 tranquillity, 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 s. 134 and may direct a person to abstain from a certain act or to make certa'.n 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 parte.
The order remains in force for not more than two months, unless the State Government, in ca~es 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 0wn motion or on the applica- tion of any person aggrieved, >f 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 reaso..ns for so doing.
c This Court in Babula/ Parate v. State of Maharashtra and Ors.(') held that s. 144 is intended to secure the public weal by preventing disorders, obstructions and annoyances. The powers
conferred by it are exercisable by a Magistrate who acts judicially and the restraints permitted by it are of a temporary nature and may be imposed only in an emergency. The Court further held
that the restrictions which the section authorises are not beyond the limits prescribed by els. (2) and (3) of Art. 19 of the Con- stitution. for the prevention of such activities as are contemp!ated by the sectiO!ll is in public ·interest and therefore no l\!ss in the interest of public order.
The Court observed that the wide power under the section may be exercised only in an emergency and for preventing obstruction, annoyance, or injury etc. as specified therein a,nd those factors necessarily condition the exercise of the power and, therefore, the power is not unlimited or untrammelled, and that the section cannot be struck down simply on the ground (1) [19611 3 S.C.R. 42).
c BlliAR STATE V, K. K. MISRA (Shah, J.) that the Magistrate might possibly abuse his pQWer. Challenge to the validity of s. 144 in its entirety was negatived in Babu/al Parate's case(1 ). The Court however did not consider the validity of the power vested in the State executive to extend the duration of the order beyond two months, apparently because no argument was advanced at the Bar in that behalf.
Power conferred upqn a Magistrate to make an order under s. 144(1) is subject to the jurisdiction of the High Court under ss. 435 & 439 of the Code of Criminal Procedure. Again an order under sub-s. ( 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-s. ( 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 a,n 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 th.e order of the Magistrate permanent. The State must in "otherwise" directing take into consideration, whether it is a case of dainger 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 thain two months, but not after apprehension of danger or emergency ceases.
It was submitted that in the absence of any statutory restric- tion on the exercise of the power, the State may abuse the power and continue it in force either permanently or for a period longer than the apprehension of danger or emergency justifies.
But the validity of a statute conferring power is not open to challenge on the plea that the power may possibly be abused by the authority in which it is vested. The order, duration of which is extended by declaratiQI\ of the State, is and continues to remain the order of the Magistrate. The source of the authority of the order is derived not from the State Government, but from the Magistrate. The direction of the State Government only extends its duration. The Code, it is true, pro- vides no machiinery for subjecting the direction by the State Gov· ernment to a judicial scrutiny. The direction under sub-s. ( 6) does not depend upon the subjective satisfaction of the Govern- ment.
On appropriate grounds the direction may be challenged i/n a petition under Art. 226 of the Constitution. Again sub-s. ( 4) of s. 144 clearly authorises a Magistrate either on his own motion or on the application of any person aggrieved, to rescind (IJ [1961] 3 S.C. R. 42J.
6Sup.CJ/70-13 [ 1970] 3 S.C.R. or alter any order made under the section. The order is passed by the Magistrate, and the source of its authority lies in the exercise of the judicial function of the Magistrate even after its duratiop. is extended by the State Government.
Therefore under sub-s. ( 4) notwithstanding that the State Government has made a direction extending the duration of the order beyoind two months, the Magistrate would, in my judgment, be competent, on a judicial consideration of the materials placed before him, to rescind or alter the order. It was submitted that a Magistrate exercising power under sub-ss. ( 1 ) & ( 4) of s. 144 <lf the Code of Criminal Procedure is an authority subordinate to the State Governm~t, and he cannot rescind or alter an order made by the State Govern- ment.
That argument proceeds upon a misconception ~f the true nature of the division of powers under our Constitution. Since the ultimate liability for maintaining law and order lies upon the State, the Legislature has provided that the order, if it is to remain in operation for a period exceeding two months, should have the imprimatur of the State Govemmeint.
But on that account the Magistrate does ~ot become an authority subordinate to the State Government. The State Government is the head of the executive and exercises no authority over the judicial functions of the Magistrates. A Magistrate is independent of the State Government and he is entitled, notwithst~ding the declaration made by the State Government, if the circumstances justify, to rescind or alter the order.
Under the scheme of division of the executive and judicial functions, it is true that power to make an order under s. 144 is g~nerally vested in Executive Magistrates who are in some matters responsible to the executive authorities.
But even under the scheme of separation of judicial and executive powers the function of the Magistrates exercising power under s. 144 remains judicial. To assume in deciding a constitutional issue, that ~ the prevailing administrative set-up, an Executive Magistrate invested with power under s. 144 of the Code of Criminal Procedure may not, on extra- judicial considerations, rescind a direction of the State Governm~t is to overlook the distinction between abuse of power and non- investment of power.
lf in a given case, the order is made on extra-judicial considerations, it is liable to be set aside by recourse to appropriate remedy. The power to amend or alter the order after its duration is extended by the State Government cannot in my judgment be denied to the Magistrate merely because he is an Executive Magistrate.
In adjudging the reasonableness of the restrictions imposed by the exercise of power on the fundamental rightq of the citizens, absence of ·a provision for judicial review and of machinery for obtaining an order recalling or amendin)! the order made in exer- cise of that power haw lo be given due weigh! : Virendra v. The c
c BIHAR STATE V. K. K. MISRA (Shah, J.) State of Punjab and Anr.(1 ) But as already poiinted out the State Government has to make an order not on any subjective sati~ac tion. The order is liable to rescission or alteration under sub-s. ( 4 ); Validity of an order made by a Magistrate is open to chal- lenge Qll appropriate ground even after it is extended by the direction of the State Government in a proceeding before the High Court, for the jurisdiction of the High Courts to examine the vali- dity of. the order of the Magistrate is not affected by the extension of the duration of the order by the direction of the executive. Again under sub-s. ( 4) of s. 144 a proceeding for withdrawal or modificatiqn of the order may be initiated even after the State has by directioll' extended its duration.
I am unable to hold that the order ol the Magistrate gets merged into the direction of the State Government when its duration is extended. In terms, suJ>.s. ( 6) provid.es that the order made by a Magistrate shall not remain in force for more than two moinths from the making thereof, unless in the classes of cases specified the State Government otherwise directs.
Therefore, even after the period is extended by the direction of the State Government the order continues to remai,n the order of the Magistrate. The dec- laration made by the State Government only removes the tempo- raly limit on its operation prescribed by sub-s. ( 6).
In State of Madras v. V. G. Row('), Patanjali Sastri, C.J., observed that in considering the reasonableness of laws imposing restrictiQlls on fundamental rights, the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reason- ableness can be laid down as applicable to all cases.
Exercise of power under section 144 is intended to ensure the maintenance of law and order, and for that purpose the section authorises the Magistrate, exercising judicial power of the State, on being satisfied on sufficient grounds, and where it is necessary that immediate prevention or speedy remedy is desirable, to make an appropriate order. Normally an order made by a Magistrate under suJ>.s. ( 1 ) of s. 144 remains in force so long as it serves its purpose, but not longer than two months. In case the danger or emergency or apprehension thereof is deep rooted, the State Government is competent by direction to extend the duration of the order.
The duty of mamtaining law and order ordinarily lies on the executive, but since the makiing of an order under s. 144 involves serious infringement of the rights of the citizens, exercise of the power is conditioned by a judicial evaluation of the circwn- stances which necessitate it.
Whether the order remains operative for its normal duration, or is extended by directiqn of the execu- (1) (1958] s.c.R. 308. (2) [19S2] S,C'.R. S97. iss tive, the Magisterial verdict lends sustenance to it. Apprehension that the executive may abuse the power to extend the duration will not, in my judgment, justify the Court in holding that the extension shifts the source of authority of the order, or vitiates the Magisterial evaluation.
I cannot accept the abstract standard that every statute in the execution of which fundamental rights of citi- zens may be infringed will be adjudged unreasonable, if within its framework the statute does not provide machiinery for judicial scrutiny or for rescission of the action taken.
Nor can l accept the plea that absence of machinery in the Code for approaching the High Court for redress against the direction of the State, and absence of express provision for moving the State for rescission or alteration of the duration constitute a test of unreasonableness. Reasonableness of a statutory provision cannot be determined by the application of a set formula :
it must be detenn.iined on a review of the procedural and substantive provisions of the statute keeping in mind the nature of the right intended to be infringed, underlying purpose of the restriction contemplated to be imposed, gravity of the evil iintended to be remedied thereby, object intended to be achieved by the imposition of restriction, and other relevant circumstances.
In my view, the appeal must be allowed and the order passed by the High Court set aside. Hegde, J.-In a proceeding under Art. 226 of the Constitution initiated by the respondents the High Court of Patna struck down the second part of sub-s. (6) of s. 144, Criminal Procedure Code as being viofative of sub-els. (b), ( c) and ( d) of cl. ( 1) of Art. 19 of the Constitution.
The State of Bihar after obtaining a certi- ficate from the High Court under Art. 132 ( 1) of the Constitution has brought this ap~eal. The respondents are 1not represented in this Court. . This Court by its order dated April 7, 1969 appointed Mr. Ramamurthi, a senior Advocate of this Court as an amicu.s curiae to assist the Court at the hearing of the appeal.
The Union of India has intervened and it was represented before us by Mr. B. Sen. As the question involved in this case directly concerns a legislation by the central legislature, notice to Attorney General was also given ·and the Attorney General was represented by Dr. Singhvi. The only question that arises for decision in this appeal is whether t)ie second part of sub-s. (6) ct s. 144, Criminal Proce- dure 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 Oilicial Gazette, otherwise directs" are liable to be struck down as beine: violative of anv of the clauses i11 Art. 19( 1 l ol' the (\l11'tit11ti<1l1. c c BIHAR STATE I'. K. K. MISRA (Hegde, J.)
)89 The facts leading to the present proceedings are as follows : It appears that there was dispute between two sections of workers in the Tata Workers Union, Jamshedpur. In that connec- tion Sbri K. N. Mishra, City Magistrate, J a.mshedpur passed an order against respondent Verma under sub-s. ( 1) of s. 144, Crimi- nal Procedure Code on May 21, 1961. He followed up that order by 1111.othef order against respondents, K. K. Mishra, Sadhu Singh, P. C. Joshi and M. N. Govende on June 20, 1961. Thereafter the State Government of Bihar passed an order under sub-s. (6) of it.144, Criminal Procedure Code and notified the same in the Bihar Official Gazette on July 18, 1961. It is the validity of this notification that is in issue ~ this case. That notification reads : "NOTIFICATION
The 18th July, 1961. No. 8255 C. Whereas the following orders have been made under the provision of section 144, Code of Criminal Procedure, 1898 (V of 1898) by Sliri K. N. Mishra, City Magistrate, Jamshedpur :-
1. To Shri R. L. Verma, Ja.mshedpur. Whereas it has been made to appear to me that the President, Tata Workers' Union, Jamshedpur, has in- formed you regarding the adoption of the resolutiQII of
ratification of no-confidence motion against you in the General Body meeting ot T.W. Union on 17th May 1961, and you received the Jetter on 18th May, 1961 ¥d still you have not refrained from attending the Office
of Tata Workers' Union, situated at K. Road, J amshed- pur, and I am satisfied that your going to the office of Tata Workers' Union, may lead to a serious breach of the peace, the prevention of which is immediately
necessary. I, K. N. Mishra, CitY Magistrate, Jamshedpur, spe- cially empowered under section 144, Criminal Procedure Code, therefore, hereby restrain you from going to the office of the Tata Workers' Union, situaJed at K. Road,
Bistupur, Ja.mshedpur, for a period of 60 (sixty) days, with effect lrom today. You are also called upon to shaw ca\llC by 25th May, 1961, at 6-30 a.m. as to why this order under section 144, Criminal Procedure Code.
should not be made absolute against yo11. Given under my hand and seal of the Coqrt, this the 21st day of May 1961. Sd. K. N. Mishra City Magistrate Jamshedpur 21-5-1961. 2. To (1) Shri Kamla Kant Mishra, (2) Shri Sadhu Singh
(3) Shri P. C. Joshi and (4) Shri M. N. Govende, all of Tata Workers' Union. Whereas the officer in charge of Bistupur P .S. has submitted a report that there is serious apprehension of
breach of peace in respect of the Tata Workers' Union Office and the same still continues. And whereas I am satisfied that a serious apprehen- sion of breach of peace still exists due to rivalry between two rival groups of the Tata Workers' Union and the
same (breach of peace) cannot otherwise be prevented unless these four members of the O.P. are prohibited from entering into the office and compound cl the Tata Workers' Union at 'K' Road Bistupur, for a further
period of 30 (thirty) days, I, K. N. Mishra, City Magis. trate, J amshedpur, specially empowered UIIlder section 144, Criminal Procedure Code do hereby prohibit Shri Kamla Kant Mishra, Shri Sadhu Singh, Shri P. C. Joshi
and Shri M. N. Govende from entering into the office and compound of the Tata Workers' Union situated at 'K' Road, Bistupur, for a further period of 30 (thirty) days with effect from today, the 20th June 1961, and
also call upon you to show cause why this order under sectioo. 144, Criminal Procedure Code, should not be made absolute. against you-Cause, if any be on 29th June, 1961, at 6-30 a.m.
Given under my hand and the seal cl the Court this 20th day of June, 1961. Sd. K. N. Mishra, City Magistrate, Jamshedpur, 20-6-1961. And whereas the above orders expire on the 19th
July, 1961, and whereas the Governor of Bihar is satis- fied that the conditions which rendered these orders 111ecessary still exist and that there is apprehension that they may continue to exist for a longer time and that
it is necessary that these orders should be eJttended for c c BIHAR STATE v. K. K. MISRA (Hegde, !.) ~ further period beyond the present date of their expiry JD the interest of the safety of the life of the inhabitants of the town of J amshedpur and in order to avoid the
risk of riotor affray. Now, therefore, in exercise of the powers cQDferred by sub-section ( 6) of the Section 144 of the said Code, the Governor of Bihar is pleased to direct that the above
orders will continue to remain in force for a period of four months, with effect from the date of publication of this notification in the Bihar Gazette, unless previously withdrawn by a notificatiQn in the said Gazette.
By Order of the Governor of Bihar, M. Sinha, Deputy Secretary to Government." At this stage we may mention that the validity of the orders made by the City Magistrate, Jamshedpur on May 21, 1961 and June 20, 1961 was not challenged in the present proceedings. Nor was the validity of a.n'y portion of s. 144, other than mentioned earlier was assailed.
The validity of parts of s. 144 other than that impugned in the present proceedings has been upheld by this Court in Babula[ Parale v. State of Maharashtra and Ors. (1). In order to consider the validily of the impugned part of s. 144, Criminal Procedure Code, it is necessary to have before us the entire section.
That section reads thus : " ( 1 ) Jin cases where, in the opinion of a District Magistrate, a Chief Presidency Magistrate, Sub-Divi- sional Magistrate, or of any other Magistrate (not being
a magistrate of the third class) specially empowered by the (State Government) or the Chief Presidency Magis- trate or the District Magistrate to act under this section (there is sufficient ground for proceeding under this
section and) . immediate prevC111tion or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to
abstain from a certain act or to take certain order with certain property in his possessiQil or under his manage- ment, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction annoy- ance or injury, or risk of obstruction, annoya.nce or injury to ·any person lawfully employed, or danger to human
life, health or safC)ty, or a disturbance of the public tranquillity, or a riot, or an affray. (1) [1961) 3 S.C.R. 423. [19701 3 s.c.R. (2) An order under this section may, in cases of
emerge1Dcy or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed, ex-parte. ( 3) An order under this section may be directed to
a particular individual, or to the public generally when frequenting or visiting a particular place. ( 4) Any Magistrate may, (either on his own motion or on the application of any person aggrieved) rescind.
or alter any order made under this section by himself or any Magistrate subordinate to him, or by his pre- decessor in office. ( 5) Where such an application is received, the Magistrate shall afford to the applicant an early oppor-
tuinitv of appearing before him either in person or by pleader and showing case against the order;.:and, if the Magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing.
(6) No order under this section shall remain in force for more than two months from the malting 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." It may be noted that orders under sub-ss. (1 ) , ( 2) , ( 3), ( 4) and ( 5) of s. 144 can oinly be passed by superior Magistrates. This Court in Babula! Parate's case(') sustained the
validity of an order made by a Mae;istrate under s. 144(1) because cl the various safeimards provided in the section. It may be seen that an order made by a Magistrate under s. 144 (1 ) , Criminal Procedure Code is open to be revised on the basis of any represen- tatioo made by the aggrieved party and is also revisable by the High Court.
An analysis of the section shows that an order under that provision is subject to the following safeguards : ( 1) It has to be made by a superior Magistrate; (2) While making the order the Magistrate has to
act judicially; (3) The order will be in operation for a short period -an order of a temporary nature; ( 4) An opportunity is given to the ·aggrieved party of showing cause against that order;
( S) Reasons have to be recorded by the Magistrate for rejecting an application under s. 144( 4) and (I) [1961] 3S.C.R. 421 a. c c BJHAR STATE v. K. K. MISRA (Hegde, J.) ( 6) The order of the Magistrate being a judicial
order, it can be challenged in revision before the High Court under s. 435 read with s. 439, Criminal Procedure Code. It was urged by Mr. Ramamurthi that whereas the legislature had provided adequate safeguards in respect of orders made by Magistrates, it has failed to provide for any safeguard in respect of orders made by the State Government ·under the second part of sub-s. ( 6) of s. 144, Criminal Procedure Code; before making an order under that provision, the State Government is not required to make any inquiry; no opporttJtllity is given to the aggrieved party to show cause against the order; the order maoe by the State Government need not be of a temporary nature and the order of the State Government is neither appealable nor revisable. Hence according to him the restrictiqn imposed on the fundamental rights guaranteed to the respondents under Art. 19(1)(b)(c)(d) viz .. to assemble peaceably without anns, to form associations or unions and to move about freely throughout India, is an unreasonable restriction.
The State has not been cqnsistent in its stand. Before the High Court, in its grounds of appeal filed as well as in the initial stage of the arguments of Mr. Goburdan learned counsel for the State of Bihar and Dr. Singhvi, the stand taken was that the order made by the State Government is l!l1l administrative order and as such is not amenable to any judicial review. But after some discussion and after obviously realising the untenability of their contention, they drastically changed their stand and contended that the only operative orders are those made by the Magistrate, the Government merely extended the duration of those orders; the order of the Government got merged in the orders of the Magistrate; the extended order is open to review u,o.der sub-s. ( 4) of s. 144, Criminal Procedure Code and the same is revisable under s. 435 read with s. 439, Criminal Procedure Code.
We sha!J now proceed to consider whether there is any basis for the new line of argument advanced in this Court. We have earlier seen the scheme of s. 144, Criminal Procedure Code. Its first sub-section empowers the aporopriate Magistrate to make any order contemplated therein. The second sub-section confers power on the Magistrate to pass the ex·parte order under certain circumstances. The third sub-section sets out the person against whom the order made by the Magistrate can be directed. The fourth sub-section provides for the review of the order by the Magistrate who made the order or his successor in office or by bis· superiot either suo moto or an the representation made by the aggrieved party. The fifth sub-section lays down the procedure to be adopted by the concerned Magi!rtrate. 10 deal with the repre- [ 1970] 3 s.c.R.
sentation received. The first part of the sixth sub-section fixes the period during which the order made by a Magistrate would be in operation. Once the process set out above comes to an end the Magistrate has no further function.
Thereafter it is · clear he becomes functus officio in relation to the order made by him. The power conferred on the Government under the second part of the sixth sub-section is an independent power.
Before issuing any direction under that sub-section, the Goverirunent has to examine afresh whether the danger to human life, health or safety or a likelihood of a riot or an affray continues and if it continues how long the original order made by the Magistrate should be kept alive.
It is true that the basic order is the Magistrate's order but the decision that the circumstances mentiOJlled in sub-s. ( 6 Y of s. 144, Criminal Procedure Code continue to exist and the original order should be continued for a certain period of time or indefinitely is that of the Government.
It is not a case of the Government order getting merged in the Magistrate's order. It is rather the converse. The Magistrate's order is adopted by the Government as its own order.
Once the Government notifies its direction. the responsibility for the continuance of the original order is that of the Government. It may be noted that the direction given by the
Government has to be notified in the Official Gp.zette. We have earlier seen that the order with which we are concerned in this case was made in the 1name of the Governor and signed by a Secretary to the Government.
That is the usual procedure adopt- ed in issuing directions under s. 144(6). From all these, it is clear that the direction in question is an executive act of the State Government coming within Art. 166 of the Constituti~. If the direction given under s. 144(6) is intended to merely keep alive a judicial order, the legislature would have entrusted that function to a judidal authority as has been done in the case of an order under s. 144(1 ), Criminal Procedure Code.
Further it is least likely that the legislature would have prescribed that such a direc- tion should be notified in the Official Gazette. If we bear in mind our legislative practice, it is difficult to accept the contention that the legislature had conferred upon the Magistrate power to review the directions givQn by the Government.
Section 144(4) says in clearest possible terms that the Magistrate may rescind or alter any order made under that section by himself or any magistrate sub- ordinate to him or by a predecessor in office. It is not possible to bring within the scope of this section the order made by the State Government. If the legislature intended to bring within tbe scope of this sub-section direction (which really means order) given by the State Government, it would have stated so particularly when it specifically referred to the order made bv the Maeistrate's pre- decessor in office or that made by a subordinate Magistrate. The scheme of the section. the language employed therein and our legislative practice militate against the new line of defence adopted c
c BIHAR STATE v. K. K. MISRA (Hegde, J.) on behalf of the State of Bihar, Union of India and the Attorney- General in this Court. o From a plain readi,tig of s. 144(6), Criminal Procedure Code, it is clear that the power conferred on the State Government is an independent power and it is an executive power. It is not expected to be exercised judicially. It is open to be exercised arbitrarily. The directions give" in the exercise of that power µeed not be of a temporary nature. The ambit of that power is very large and it is uncontrolled.
Dr. Singhvi at one stage urged that the only check on the exercise of that power by the Government is the searching scrutiny of governmental actions expected from our legislators.
We shall assume as Dr. Singhvi wants us to do that the executive actions of the Government are constantly being watched by the legislators. But that does not absolve this Court's responsibility. To quote the felicitous expressions of one of the illustrious former Chief Justices of th.ls Court (Sri Patanjali Sastri) in State of Madras v. V. G. Row(') that as regards the fundamental rights, the Con- stitution has assigned to this Court the role of a Sentinel on the quivive. Proceeding further the learned Chief Justice observed in that case that "while this Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to deter- mine finally the cQllstitutionality of an impugned statute". It will be neither fair nor just to this Court or to our Constitution or even to our representatives, if this Court deserts its duty on the assump- tion that the other organs of the State would safeguard the funda- mental rights of the citizens. Dr. Singhvi's con~tion ignores the very character of the fundamental rights, the basic principles underlying them and the safeguards carefully erected by our Constitution against the legislative encroachment of the fundamein· ta! rightz of citizens. Further it is based on an over simplification of the concept of the rule of the majority in a parliamentary democracy. It overlooks the fact that these safeguards are prima- rily intended to protect the rights of the minority. Dr. Singhvi's cQlltention also overlooks the fact that the fundamental rights constitute a protective shield to the citizens as against State actions. Therefore there is no point in saying that the legislators would see that those rights are not impugned,
The real question for decision is whether impugned restriction is a reasonable restriction. Unless that restriction can be consider· ed as a reasonable resiriction, it does not get the protection of Sub-Arts. (3), (4) and (5) of Art. 19, which means that restric- tion is violative of Art. 19(1 )(b)(c) and (d).
(I) [1952] S.CR. 597 .. SUPREME COURT REPO.ll'fS [ 1970J 3 S.C.R. As observed in Dr. Khare v. State of Delhi('), and reiterated in V. G. Rao's case(') that in considering reasomableness of laws imposing restrictions on fundamental rights both substantive and procedural aspects of the law should be examined from the point of view of reasonableness and the test of reasonableness wherever prescribed should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases.
It is not possible to for- mulate an effective test which would e-nable the court to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant circumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. In other words in order to be a reasonable restric- tion, the same must not be arbitrary or excessive and the procedure and the man,ner of imposition of the restriction must also be fair and just.
Any restriction which is opposed to the . fundamental principles of liberty and justice cannot be considered reasonable. One of the important tests to find out whether a restriction is reasonable is to see whether the aggrieved party has a right of representation against the restriction imposed or proposed to be imposed.
No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate, fair and reasonable. Further the courts have
to see whether the restriction is in excess of the requirement or whether it is imposed in an arbitrary manner. Although the object of a restriction may be beyond reproach and may very well attract the protection of Sub-Arts. 1 to 6 of Art. 19, if the statute fails to provide sufficient safeguards against its misuse the operative sections will be rendered invalid-see The State of Madhya Pradesh
v. Baldeo Prasad(3). A restriction imposed under s. 3 (1) of the Punjab Special Powers Act, 1956 was struck down by this Court in Virendra v. State of Punjab(') on the ground that the Act did not provide for any time for the operation of an order made thereunder nor for a representation by the aggrieved party.
Now adverting to the restriction impugned in this case, the power to impose the same is conferred on the executive Government and not to any judicial authority. There is no provision to make
representation by the .aggrieved party against the direction given by the Government; no appeal or revision is provided against that direction and the order made need not be of temporary nature. Hence we agree with the High Court that impugned provision is (!) [19501 S.C.R. 5t9.
0) [1961] I S.C.R. 970. (2) [t952[ S.C.R. 597. (41 [19581 S.C.R. 308. c lilltAR STA'l'E V. K. K. MISRA (Hegde, J.) violative of Art. 19 (1 )(b) ( c) and ( d) and is not saved by Art. 19(3), (4) or (5).
In the result this appeal fails and the same is dismissed. ORDER In accordance with the opinion of the majority the appeal is dismissed. G.C.