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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
PERMANENT IMPRINT LEADING CASES

Clauses (2) to (6) of Article 19 of Constitution of India do not require the making of a law solely for the purpose of placing the restrictions mentioned in them. Section 144 of Criminal Procedure Code can serve the purpose.

 

Babulal Parate v. State of Maharashtra , AIR 1961 SC 884

Facts: The Rashtriya Mill Majdoor Sangh (RMS), a trade union in Nagpur entered into an agreement with the management of the Empress Mills regarding the closure of a Mill for re-building it and regarding the employment of workers who were employed therein in a third shift. This agreement was opposed by another trade union, the Nagpur Mill Majdoor Sangh (NMS). On January 25, 1956, a group of workers belonging to the NMS took out a procession in the locality where the office of RMS was located. It was said that a scuffle took place there between the members of both the unions. An offence under section 452 read with section 147, IPC was registered by the police on January 27, 1956. Thereafter, the members of NMS took out a procession shouting slogans which, according to the District Magistrate, were provocative. On the same night a meeting of NMS was held in which it was alleged that the workers were instigated by the speakers to offer satyagraha in front of the Empress Mill and also to take out a procession to the office of the RMS. On January 28, 1956, the workers belonging to NMS assembled in large numbers blocking the traffic on the road. The District Magistrate passed an order at 4:00 a.m. on January 29, 1956, which came into force immediately and was to remain in force for a period of fifteen days prohibiting, inter alia , the assembly of five or more persons in certain areas specified in the order.

The petitioner held a public meeting outside the area covered by the aforesaid order. It is alleged that at that meeting he criticised the District Magistrate and exhorted the workers to contravene his order and take out processions in the area covered by the order. Thereupon he was arrested by the police for having committed the offences already referred to and produced before a Magistrate. The Magistrate remanded him to jail custody till February 15, 1956. The petitioner's application for bail was rejected on the ground that the accusation against him related to a non-bailable offence. Thereupon the petitioner moved the High Court at Nagpur for his release on bail but his application was rejected on February 22, 1956. The petitioner then presented a petition before the High Court under section 491 of the Code of Criminal Procedure for a writ of habeas corpus. That petition was dismissed by the High Court on May 9, 1956. The petitioner then moved the High Court for granting a certificate under Article 132 of the Constitution.

The High Court refused to grant the certificate on the ground that in its opinion the case did not involve any substantial question of law regarding the interpretation of the Constitution and was also not otherwise fit for grant of a certificate. On April 23, 1956, the petitioner presented a petition before the Supreme Court. After the proceedings were stayed by the Supreme Court, the petitioner was released on bail by the trying Magistrate.

Issues: 1. Whether section 144, CrPC in-so far as it relates to placing of restrictions on freedom of speech and freedom of assembly and confers very wide powers on the District Magistrate and certain other Magistrates, places unreasonable restrictions on the rights guaranteed under Article 19(1)(a) and (b) of the Constitution?

2. Whether the District Magistrate constitutes the whole legal machinery and the only check for control on his powers is by way of a petition to him to modify or rescind the order and that the District Magistrate becomes "a judge in his own cause"? Further, the remedy by way of a revision application before the High Court against the order of the District Magistrate is also illusory and thus in effect there can be no judicial review of his order in the proper sense of that expression.

3. Section 144, CrPC substitutes suppression of lawful activity or right for the duty of public authorities to maintain order.

Judgment: The power conferred by section 144 of CrPC can be exercised only in an emergency and for the purpose of preventing 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. These factors condition the exercise of the power and it would consequently be wrong to regard that power as being unlimited or untrammelled. Further, it should be borne in mind that no one has a right to cause obstruction, annoyance or injury etc. to anyone. Since the judgment has to be of a Magistrate as to whether in the particular circumstances of a case an order, in exercise of these powers, should be made or not, we are entitled to assume that the powers will be exercised legitimately and honestly. The section cannot be struck down on the ground that the Magistrate may possibly abuse his powers.

The rights guaranteed by Article 19(1)(a) and (b) are not absolute rights but are subject to limitations specified in Article 19(2) and (3) of the Constitution. It must be borne in mind that the provisions of section 144 are attracted only in an emergency. The initial judge of the emergency is, no doubt, the District Magistrate or the Chief Presidency Magistrate or the Sub-Divisional Magistrate or any other Magistrate specially empowered by the State Government. The question of formation of the opinion as to whether there is an emergency or not must necessarily rest, in the first instance, with those persons through whom the executive exercises its functions and discharges its duties. It would be impracticable and even impossible to expect the State Government itself to exercise those duties and functions in each and every case. Therefore, the provisions of section 144 which commit the power in this regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded as unreasonable. The satisfaction of the Magistrate as to the necessity of promulgating an order under section 144 CrPC is not made entirely subjective by the section.

 
 
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