PETITIONER:
MD. GULAM ABBAS & ORS.
Vs.
RESPONDENT:
MD. IBRAHIM & ORS.
DATE OF JUDGMENT16/12/1977
BENCH:
BEG, M. HAMEEDULLAH (CJ)
BENCH:
BEG, M. HAMEEDULLAH (CJ)
BHAGWATI, P.N.
SINGH, JASWANT
CITATION:
1978 AIR 422 1978 SCR (2) 419
1978 SCC (1) 226
CITATOR INFO :
E 1981 SC2198 (4,5,6,33)
ACT:
Criminal Procedure Code, 1973, (Act 11 of 1974), S. 144-
Principles on which jurisdiction is to be exercised u/s 144
of the Crl. P.C. by magistrate, explained.
HEADNOTE:
In Md. Ibrahim v. State of U.P. etc. (C.A. No. 941A of 1976
etc. etc. decided on 6-12-1976), this Court set aside the
judgment of the Allahabad HIgh Court passed in the Writ
Petition quashing the orders of the City Magistrate and
Session Judge u/s. 144 Crl. P.C., holding that High Court
committed an error in pronouncing views on the ‘orders
passed by the criminal courts when they ceased to be
operative and in giving finding on rights, title and
property ,in a petition u/A 226 and227 ‘of the Constitution.
In the Review Petition,the Review Petitioners contended that
unless the court mentioned the correct principles on which
jurisdiction is to be exercised u/s 144 Crl. P.C. by
Magistrates, they may continue to exercise them on wrong
principles.
Dismissing the Petition the Court,
HELD : 1. No hard and fast rules can be laid down for
guidance in exercising a power on which decisions must
necessarily be governed by the existing situation in each
case. It has to be judged on facts and circumstances
existing at a particular place at a particular time. [421CD]
2. S. 144 confers a jurisdiction “to direct any person to
abstain from a certain act or to take certain order with
certain property in his possession or under his management”.
[420C]
3. The kind of orders u/s 144(3) which “may be directed
to a particular individual or to the public generally
when frequenting or visiting a Particular place are intended
only to prevent dangers to life health, safety or peace and
tranquility of members of the public. A person may be
prevented from doing something even upon his own property
provided that the doing of a perfectly legal act constitutes
a danger to human life, health or safety of others or to
public peace and tranquility. They are only temporary
orders which cannot last beyond two months from the making
thereof. [420C-D]
4. Questions of title cannot be decided for the first time
either in a Writ Petition or in a proceeding u/s 144 Crl.
P.C. at all, as the remedy lies by way ,of a Civil Suit for
an injunction. But, previous judgments on them may have a
hearing on the question whether, and, if so, what order
should be passed u/s. 144 Crl. P.C. The magistrate is not
concerned. with individual rights in performing his duty u/s
144 Crl. P.C. but he has to determine what may reasonably
necessary or expedient in a situation of which he is the
best judge. [420DE, 421A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Review Petition No. 36 of
1977. Application for review of this Court’s Judgment dated
6th of De76.
IN
Civil Appeal No. 941-A of 1976
A. K. Sen, M. C. Bhandare, (Mrs.) Urimila Kapoor, (Miss).
Kamlesh Bansal and (Mrs.) Shobha Dikshit for the
Petitioners.
420
Bashir Ahmed, K. L. Hathi and P. C. Kapoor for the
Respondents.
The Order of the Court was delivered by
BEG, CJ.-This review application seems quite unnecessary.
Since, however, learned Counsel for the petitioners have
earnestly tried to impress upon us that, unless we mentioned
the correct principles on which jurisdiction is to be
exercised under Section 144 of the Criminal Procedure Code
by Magistrates, they may continue to exercise them on wrong
principles, we may clear up these possibly imaginary
difficulties. We find it hard to believe that Magistrates
will deliberately shut their eyes to the requirements of law
as laid down clearly in Section 144, Cr. P.C., but, as what
is not easily conceivable sometimes does happen, we will
explain the provisions of Section 144 Criminal Procedure
Code a little.
This-provision confers a jurisdiction to “direct any person
to abstain from a certain act or to take certain order with
certain property in his possession or under his management”
with the object, inter alla, of preventing “a disturbance of
the public tranqunity, or a riot, or an affray”. Section
144(3) specifically lays down that the order under this
Section “may be, directed to a particular individual or to
the public generally when frequenting or visiting a
particular place”. The kind of orders mentioned here are
obviously intended only to prevent dangers to life, health,
safety or peace and tranquility of members of the public.
They are only temporary orders which cannot last beyond two
months from the making thereof as is clear from Section
144(6) of the Code. Questions of title cannot be, decided
here at all. But, previous judgments on them may have a’
bearing on the question whether, and, if so, what order
should be, passed under Section 144 Criminal Procedure Code.
It may sometimes happen that a person may be prevented from
doing something even upon his own property provided the
doing of a perfectly legal act constitutes a danger to human
life, health, or safety of others or to public peace and
tranquility. An example of this can be shouting of
provocative slogans from one’s own house top. Nevertheless,
it is the duty of the authorities to aid and protect those
who are performing completely legal acts in a reasonable and
perfectly legal manner or in accordance with what the law
permits them to do. It is only where it is not practicable
to allow them to do something which is quite legal, having
regard to the state of excited feelings of persons living in
an area or frequenting a locality, that any action may be
taken under Section 144 Criminal Procedure Code which may
interfere with what are, otherwise, completely legal and
permissible conduct and speech.
It was asserted on behalf of the petitioners that in a
representative suit between Shia and Sunni sects of Muslims
question of title to properties or places to which
Magistrate’s orders under Section 144 Criminal Procedure
Code related has already been decided. If that be so. we
have no doubt that the Magistrate will respect that decision
in making an order under Section 144 Cr. P.C. in the
future, Then it would be easier for the Magistrate to see
who should be allowed to exercise-
421
the legitimate right of holding a meeting on or occupying a
particular property or doing anything else, there. It may
however be noted that the Magistrate is not concerned with
individual rights in performing his duty under Section 144
but he has to determine what may be reasonably necessary or
expedient in a situation of which he is the best judge.
If any community or sect is disposed to transgress the
rights of another in a particular property habitually, the
remedy lies by way of a civil suit for an injunction. Both
sides before us make conflicting assertions on such
questions. It is impossible to decide them for the first
time either in a writ petition or in a proceeding under
Section 144 of the Criminal Procedure Code. If public peace and tranquili
ty or other objects mentioned there are not in
danger the Magistrate concerned cannot act under Section
144. He could only direct parties to go to the proper
forum. On the other hand, if the public safety, peace, or
tranquility are, in danger, it is left to the Magistrate
concerned to take proper action under Section 144 Criminal
Procedure Code. No hard and fast rule-, can be laid down
for guidance in exercising a power on which decisions must
necessarily be governed by the existing situation in each
case. It has to be judged on facts and circumstances
existing at a particular place at a particular time.
We have no doubt that, particularly after this brief and
obvious explanation of the provisions of Section 144
Criminal Procedure Code, no orders will be passed contrary
to that the section itself so clearly requires as conditions
precedent to the passing of an order. We are not convinced
at all that the applicants had any real ground for seeking a
review of our orders. Consequently, we dismiss this
application. We, however, make no orders as to costs.
S.C R. Review
Petition dismissed.
422