# of Income-tax, Bombay City I Hiday~tuUah ]. I96I January 1z. Babulol Parot• v. Stale of Maharashtra

- **Citation:** [1961] 3 S.C.R. 423
- **Court:** Supreme Court of India
- **Decided:** 1961
- **Bench:** B. P. Sinha, s. K. DAS, A. K. Sarkar, N. Rajag-O~Ala Ayyangar, J. R. Mudholxar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/of-income-tax-bombay-city-i-hiday-tuuah-i96i-january-1z-babulol-parot-v-stale-2024
- **Pages:** 17

## Headnote

Criminal procedure-Apprehended danger-Power of Magistrate
to issue order absolute at once-.Constitutionalily-Code of Criminal
Procedure, I898 (V of I898), s. I44-Constitution of India, Art. I9
(I)(a) and (b).
·
The District Magistrate, apprehending a breach of peace as a
resulfof demonstrations and counter-demonstrations held by two
rival labour unions, promulgated an order under s. 144 of the
Code of Criminal Procedure, which Was to remain in force for a
period of fifteen days, prohibiting, inter alia, the assembly of five
or more persons in certain specified areas. The petitioner took
it as an invasion on the fundamental rights of the citizens under
Art. rg(r)(a) and (b) of the Constitution and held a meeting outside the specified areas and exhorted the workers to take out
processions in the no.tified areas in defiance of the said order. He
was thereupon prosecuted under ss. 143 and r88 read withs. rr7
of the Indian Penal Code. He moved the High Court under s. 491
of the Code of Criminal Procedure, and having failed to get relief
there, moved this Court under Art. 32 of the Constitution challenging the constitutional validity of s. 144 of the Code ·on the
ground that it conferred wide and unguided powers on the
District Magistrate and thus contravened Art. rg(r)(a) and (b) of
•.he Constitution.
Held, that the attack on the constitutional validity of s. 144
of the Code of Criminal Procedure must fail.
r96z
M/s. Bhor
Indus/ties Ltd.
v.
Commissioner
of Income-tax,
Bombay City I
Hiday~tuUah ].
I96I
January 1z.
Babulol Parot•
v.
Stale of
Maharashtra
424
SUPREME COURT REPORTS
[1961]
Read as a whole, the section clearly showed that it was
intended to secure the public weal by preventing .disorders,
obstructions and annoyances. The powers conferred by it were
exercisable by responsible Magistrates who were to act judicially
and the restraints permitted by it were of a temporary nature
and could be imposed only in an emergency,
The restrictions whkh thesecti6n authorises are not beyond.
the limits prescribed by els. (2) and'(3) of Art. 19 of the Constitution. The prevention of such adivities as are contemplated by
the section is undoubtedly in public interest and therefore no less
in the interest of public order.
Clauses (2) to (6) of Art. 19 of the Constitution do not require.
a special enactment for the enforcement of the restrictions mentioned in them.
·
The impugned section must be construed as a whole and.
although the first part of cl. (irdoes not expressly mention that
the order of the Magistrate must be preceded by an enquiry, the
second part clearly indicates that the Magistrate has to satisfy
himself either by his own enquiry or from a report made to him
as to what the facts are. The section does not, therefore, confer
an arbitrary power on the Magistrate in the matter of making the
order.
The wide power under the section can be exercised only in
an emergency and for the purpose of preventing obstruction,
annoyance or injury etc. as specified therein and those are the
factors that must necessarily condition the exercise of the power
and, therefore, it was not correct to say that the power is unlimited
or untrammelled. Since the judgment has to be of a Magistrate, it
can be assumed that the power will be exercised legitimately and
honestly. The section cannot be struck down simply on the
ground that tlie Magistrate might possibly abuse -his power.
Although the section makes the Magistrate the initial Judge
of an emergency that cannot make the restrictions placed by it
unreasonable. Since maintenance of law and order rests with the
Executive, it is only appropriate that the initial decision must be
with the Magistrate. But such decision is not entirely based on
his subjective satisfaction. Sub-sections (2), (4) and (5) clearly
indicate that the Magistrate must act jndicially. Moreover. the
propriety of his order can be challenged in revision.
It was not,
therefore, -correct to say that the remedy of a person aggrieved
by an

## Text

I
38.C.R.
SUPREME COURT REPORTS
423
portion of the income which was earned in British
India and not in Bhor State. The answer to the
second question is in the negative. The answer to the
third question is in the affirmative. The question
posed and answered by the High Court hardly arises,
in view of the answer to the first question. That
question and the answer to it are set aside as being not
necessary.
The appeals thus fail except for a slight modification in the answer to the first question, and subject to
that modification, are dismissed. The appellants
must bear the costs of these appeals. There shall be
one hearing fee.
Appeals dismissed.
BABULAL PARATE
v.
STATE OF MAHARASHTRA AND OTHERS.
(B. P. SINHA, C.J., s. K. DAS, A. K. SARKAR,
N. RAJAG-O~ALA AYYANGAR and J. R. MUDHOLXAR, JJ.)
Criminal procedure-Apprehended danger-Power of Magistrate
to issue order absolute at once-.Constitutionalily-Code of Criminal
Procedure, I898 (V of I898), s. I44-Constitution of India, Art. I9
(I)(a) and (b).
·
The District Magistrate, apprehending a breach of peace as a
resulfof demonstrations and counter-demonstrations held by two
rival labour unions, promulgated an order under s. 144 of the
Code of Criminal Procedure, which Was to remain in force for a
period of fifteen days, prohibiting, inter alia, the assembly of five
or more persons in certain specified areas. The petitioner took
it as an invasion on the fundamental rights of the citizens under
Art. rg(r)(a) and (b) of the Constitution and held a meeting outside the specified areas and exhorted the workers to take out
processions in the no.tified areas in defiance of the said order. He
was thereupon prosecuted under ss. 143 and r88 read withs. rr7
of the Indian Penal Code. He moved the High Court under s. 491
of the Code of Criminal Procedure, and having failed to get relief
there, moved this Court under Art. 32 of the Constitution challenging the constitutional validity of s. 144 of the Code ·on the
ground that it conferred wide and unguided powers on the
District Magistrate and thus contravened Art. rg(r)(a) and (b) of
•.he Constitution.
Held, that the attack on the constitutional validity of s. 144
of the Code of Criminal Procedure must fail.
r96z
M/s. Bhor
Indus/ties Ltd.
v.
Commissioner
of Income-tax,
Bombay City I
Hiday~tuUah ].
I96I
January 1z.
Babulol Parot•
v.
Stale of
Maharashtra
424
SUPREME COURT REPORTS
[1961]
Read as a whole, the section clearly showed that it was
intended to secure the public weal by preventing .disorders,
obstructions and annoyances. The powers conferred by it were
exercisable by responsible Magistrates who were to act judicially
and the restraints permitted by it were of a temporary nature
and could be imposed only in an emergency,
The restrictions whkh thesecti6n authorises are not beyond.
the limits prescribed by els. (2) and'(3) of Art. 19 of the Constitution. The prevention of such adivities as are contemplated by
the section is undoubtedly in public interest and therefore no less
in the interest of public order.
Clauses (2) to (6) of Art. 19 of the Constitution do not require.
a special enactment for the enforcement of the restrictions mentioned in them.
·
The impugned section must be construed as a whole and.
although the first part of cl. (irdoes not expressly mention that
the order of the Magistrate must be preceded by an enquiry, the
second part clearly indicates that the Magistrate has to satisfy
himself either by his own enquiry or from a report made to him
as to what the facts are. The section does not, therefore, confer
an arbitrary power on the Magistrate in the matter of making the
order.
The wide power under the section can be exercised only in
an emergency and for the purpose of preventing obstruction,
annoyance or injury etc. as specified therein and those are the
factors that must necessarily condition the exercise of the power
and, therefore, it was not correct to say that the power is unlimited
or untrammelled. Since the judgment has to be of a Magistrate, it
can be assumed that the power will be exercised legitimately and
honestly. The section cannot be struck down simply on the
ground that tlie Magistrate might possibly abuse -his power.
Although the section makes the Magistrate the initial Judge
of an emergency that cannot make the restrictions placed by it
unreasonable. Since maintenance of law and order rests with the
Executive, it is only appropriate that the initial decision must be
with the Magistrate. But such decision is not entirely based on
his subjective satisfaction. Sub-sections (2), (4) and (5) clearly
indicate that the Magistrate must act jndicially. Moreover. the
propriety of his order can be challenged in revision.
It was not,
therefore, -correct to say that the remedy of a person aggrieved
by an order under the section was illusory.
P. T. Chandra, Editor, Tribune v. Emperor, A.LR. 1942 Lah.
171, referred to.
The American doctrine that previous restraints on the exercise of fundamental rights are permissible only if there is a clear
and present danger, can have no application in India, since the
rights guaranteed by Art. 19(1) of the Constitution are not
absolute but subject to restrict10ns under els. (2) to (6) of that
-l
3S.C.R.
SUPREME COURT REPORTS
.425
Article. Anticipatory action permitted by s. 144 is not, therefore,
hit by els. (2) and (3) of Art, 19.
Scheneck v. U.S. 249 U.S. 47, considered.
,
State oIMadras ';'· V. G. Row [1952] S.C.R. 597, relied. on.
ORIGIN,1.L JURISDICTION: Petition No. 90 of 1956.
Petition under Art. 32 of the Constitution of India
for enforcement of Fundamental rights.
R. V. S. Mani, for the petitioner.
N. S. Bindra, K: L. Hathi and R. H. Dhebar, for the
respondents:
·
196L< January 12. The Judgment of the Court Wl)oS
delivered by
· MUDHOLKAR, J.~This is s. petition under Art. 32 of
the Constitution for issuing an appropriate writ to the
respondents not to• enforce the provisions of s. 144
of the Criminal Procedure Code or an appropriate writ
forbidding respondent No. 4 from proceeding further
with the prosecution of the petitioner for offences
under ss; 143 and 188 of the Indian Penal Code read
withs. 117 thereof, for quashing the proceedings against
the petitioner before respondent No. 4 and for the issue
of a writ of habeas corpus to respondents 1 to 3 directing them to produce or to cause to be produced the.petitioner to be dealt with according to law and to set him
at liberty.
The facts which have led up to the petition !j.re
briefly as follows :
There are two unions. of textile workers in Nagpur,
one known as the Rashtriya Mill. Majdoor Sangh and
the other as Nagpur Mill Majdoor Sangh. The former
is a branch of the Indian National Trade Union Congress. The Rashtriya Mill l\fajdoor Sangh entered into
!!on agreement with the management oft.he Empress
Mills regarding the closure of Empress Mill No. 1 for.
rebuilding it and regarding the employment of workers
who were employ~d therein. in) a third shift. This
agreement was opposed by the Nagpur Mil! Majdoor
Sangh. On January 25, 1956, a group of workers
belonging to the Nagpur Mill Majdoor Sangh went in a
procession to Gujar's Wada, Mah.al, Nagpur, where the
office of the Rashtriya Mill Majdoor Sangh is located.
~+
Babulal Parate
State of
M aharashlra
Mudholkar ].
Babulal Parate
v.
State of
M t1harashtra
Mutlholkar J.
426
SUPREME COURT REPORTS
[1961]
It is said that a scuffle took place there between some
members of the proc•ession and some workers belong·
ing to Rashtriya Mill Majdoor Sangh. Thereupon an
offence under s. 452 read with s. 147 of the Indian
Penal Code was registered by the police on Jan nary 27,
1956. A large procession consisting of the workers of
the Nagpur Mill Majdoor Sangh was ta.ken out.
This
procession marched through the city of Nagpur shout·
ing slogans which, according to the District Magistrate,
were provocative. On the same night a meeting was
held at the Kasturchand Park in which it was alleged
that the workers belonging to the Nagpur Mill Majdoor
Sangh were instigated by the speakers who addressed
the meeting to offer satyagraha in front of the Empress
Mill No. I and also to take out a procession to the
office of the Rashttiya Mill Majdoor Sangh.
On
January 28, 1956, the workers belonging to the Nagpur
Mill Majdoor Sangh assembled in large numbers in
Mahal Chowk and on Mahal road blocking the traffic
on the road. It is said that these persons were squat.
ting on the road and as they refused to budge tlie
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, among other things, the assembly of five
or more persons in certain areas specified in the order.
The petitioner entertained the view that the order .
promulgated by the District Magistrate . under s. 144
of the Code of Criminal Procedure was an encroach·
ment on the fundamental rights of the citizens to
freedom of speech and expression and to assemble
peaceably and without arms, guaranteed under
Art. 19(l)(a) and (b) of the Constitution and, therefore,
he 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 proces·
sions in the area covered by the order. Thereupon he
was arrested by the Nagpur police for having committed the offences already referred to and produc~d
before a magistrate. The magistrate f<'llrn.nded him to
I-
3 S.C.R.
SUPREME COURT REPORTS
427
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 s. 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 Art. 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 the present petition before this Court. The
petitioner also sought an ex parte order for the stay of
the proceedings before the respondent No. 4 till the
decision on the petition to this Court.
Th is Court
admitted the petition but rejected the application for
stay. On May 6, 1956, the petitioner took out a notice
of motion for securing stay of the proceedings before
respondent No. 4. On May 28, 1956, this Court ordered
that the entire prosecution evidence be recorded but the
delivery of the judgment be stayed pending the decision of this petition.
After the proceedings were stayed by this Court, the
petitioner was released on bail by the trying
magistrate.
.
On behalf of the petitioner Mr. Mani has raised the
following contentions:
(l) That s. 144 of the Code of Criminal Procedure
in so far as it relates to placing of restrictions on
freedom of speech and freedom of assembly confers
very wide powers on the District Magistrate and
certain other magistrates and thus places unreasonable restrictions on the rights guaranteed under
Art. 19(l)(a) and (b) of the Constitution.
(2) The District Magistrate constitutes the whole
legal machinery and the only check for control on
Ba~ulal Parale
v.
State of
Maharashtra
M udholkar J.
Babulal ParaJe
v.
Stale of
Maharashtra
Mudholkar ].
428
SUPREME COURT REPORTS
[1961]
his powers is by way of a petition to him to modify
or rescind the order, that thus the District Magistrate becomes" a judge in his f)Wn cause"-presum.
ably, what learned counsel means is a judge with
regard to his own decision-and so the remedy
afforded by the section is illusory. 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 adopts "likelihood" or "tendency"
a;i tests for judging criminality ; the test of deter.
mining the criminality in advance is unreasonable.
(4) Section 144 substitutes suppression of lawful
activity or right for the duty of public authorities to
maintain order.
(5) Even assuming that s. 144 of the Code of
Criminal Procedure is not ultra vires the Constitution,
the order passed by the District Magistrate in this
case places restrictions which go far beyond the
scope of clauses (2) and (3) of Art. 19 and thus that
order is unconstitutional.
Learned counsel also challenged the validity of the
order on grounds other than constitutional, but we
need not consider them here since it will be open to
the petitioner to raise them at the trial. This being a
petition under Art. 32 of the Constitution, the petitioner must restrict himself to those grounds which fall
within cl. ( 1) thereof.
We think it desirable to reproduce the whole of
s. 144.
"(1) In cases where, in the opinion of a District
Magistrate, a Chief Presidency Magistrate, Sub.
Divisional Magistrate, or of any other Magistrate
(not being a Magistrate of the third class) specially
empowered by the ' State Government' or the
Chief Presidency Magistrate or the District Magis.
trate to act under this section there is sufficient
ground for proceeding under this section and im.
mediate prevention or speedy remedy is desirable,
such.Magistrate may, by a written order stating
3. S.C.R.
SUPREME COURT REPORTS
429
the material facts of the case and served in manner
provided by section 134, direct any person to abstain
from a certain act or to take certain order with
certain property in his possession or under his
management, if such Magistrate considers that
such 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 tranquillty or
a riot, or an affray.
(2) An order under this section may, in cases of
emergency 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, eithn 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
predecessor in office.
(5) Where such an application is received, the
Magistrate shall afford to the applicant an early
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 reasons for
doing.
·
(6) 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."
Sub-section (1) confers powers not on the executive
but on certain Magistrates. This provision has been
amended in some States, as for instance, the former
Bombay State where power has been conferred on the
Commi~sioner of Police to pass an order thereunder.
But we are not concerned with that matter here
Babula! Parate
v.
State of
M ahaf'a$hlra
.. \1 udh(llkar J.
Babulal Parate
v.
State of
Maharashtra
M udholkar J.
430
SUPREME COURT REPORTS
[1961]
because that provision is not contained in the law as
applicable to the former State of Madhya Pradesh
with which alone we are concerned in the matter
before us. Under sub-s. (1) the Magistrate himself has
to form an opinion that there is sufficient ground for
proceeding under this section and immediate prevention or speedy remedy is desirable. Again the subsection requires the Magistrate to make an order in
writing and state therein the material facts by reason
of which he is making the order thereunder. The subsection further enumerates the particular activities
with regard to which the Magistrate is entitled to
place restraints.
Sub-section (2) requires the Magistrate ordinarily to
serve a notice on the person against whom the order
is directed and empowers him to proceed ex parte only
where the circumstances do not admit of serving such
a notice in due time.
Sub-section (3) does not require any comment.
Suh-sec~ion (4) enables a Magistrate to rescind or
alter an order made under this section and thus
enables the person affected, if the order is addressed_to
a specified individual, or any member of the public, if
the order is addressed to the public in general, to
seek, by making an application, exemption from compliance with the order or to seek a modification of the
order and thus gives him an opportunity to satisfy the
Magistrate about his grievances. The Magistrate has
to deal with applications of this kind judicially .
because he is required by sub-s. (5) to state his reasons
for rejecting, wholly or in part, the application made
to him.
Finally the normal maximum duration of the order
is two months from the date of its making. The
restraints imposed by the order are thus intended to be
of a temporary nature.
Looking at the section as a whole it would be clear
that, broadly speaking, it is intended to be availed of
for preventing disorders, obstructions and annoyances
and is intended to secure the public weal. The powers
are exercisable by responsible magistrates and these
magistrates have to act judicially. Moreover, the
3·S.C.R.
SUPREME COURT REPORTS
431
restraints permissible under the provision are of a
temporary nature and can only be imposed in an
emergency.
Even so, according to th.e learned counsel these provisions place unreasonable restrictions on certain
fundamental rights of citizens.
Firstly, according to learned counsel restrictions on
the rights guaranteed by els. (2) and (3) of Art. 19 of
the Constitution can be placed in the interest of
"public order " and not in the interest of the "general
public", which expression, according to him is wider
in its ambit than public order and that since s. 144
enables a magistrate to pass an order in the interest
of the general public the restrictions it authorises are
beyond those permissible ·under els. (2) and (3) of
Art. 19. It is significant to note that s. 144 nowhere
uses the expression "general public". Some of the
objects for securing which an order thereunder can be
passed are, " to prevent obstruction, annoyance,
injury ......... " etc. No doubt, the prevention of such
. activities would be in the "public interest" but it
would be no less in the interest of maintenance of
" public order, "
Secondly, according to learned counsel, s. 144 is an
amalgam of a number of things to many of which
there is no reference even in cl. (2) of Art. l!J. In order
to enable the State to avail of the provisions of els. (2)
and (3), he contends, a special law has to be passed
and a provision like s. 144 can serve no purpose. This
contention has only to be mentioned to be rejected.
Clauses (2) to (6) of Art. 19 do not require the ma.king
of a law solely for the purpose of placing the restrictions mentioned in them.
Thirdly, according to learned counsel sub-s. (1) of
s. 144 does not require the. magistrate to make an
enquiry as to the circumstances which necessitate the
making of an order thereunder.
It is true that there
is no express mention anywhere in s. 144 that the order
of the magistrate should be preceded by an enquiry.
But we must construe the section as a whole. The
latter part of sub-s. (1) of s. 144 specifically mentions
that t.he ordAr of the magistrate should set out the
Babulal Pafate
v.
State of
Maharashtra
Mudholkar ].
I
Babulal Parate
v.
State of
Maharashtra
Mudholkar ].
432
SUPREME COURT REPORTS
[1961]
material facts of the case. It would not be possible
for the magistrate to set out the facts unless he makes
an enquiry or unless he is satisfied about the facts from
personal knowledge or on a report made to him which
he prima f acie accepts as correct. Clearly, therefore,
the section does not confer an arbitrary power on the
magistrate in the matter of making an order.
It is contended that s. 144 of the Code of Criminal
Procedure confers very wide powers upon certain
magistrates and that in exercise of those powers·t-he
magist,rates can place very severe restrictions upon the
rights of citizens tb freedom of speech and expression
and to assemble peaceably and without. arms.
It seems to us, however, that wide though the power
appears to be, it 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 tQ cause
" obstruction, annoyance or injury:. etc.," to anyone.
Since the judgment has to be ofa .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 bis powers.
It is also true that initially it.is the magistrate con.
cerned who has to form an opinion as to the necessity
of 'ma.king an· order" The question, therefore, is
whether the conferral of such a wide power a.mounts
to an infringement of the rights guaranteed. under
Art. 19(l)(a) and (b) of the. Constitution. The rights
guaranteed by sub-cl. (a) are not absolute rights but
are subject to limitations specified in· cl. (2) of Art. 19
which ruris thus:
"Nothing in sub-clause (a) of clause (I) sh.all affect
· . the operation of any existing· law, or. prevent the
3 S.C.R.
SUPREME COURT REPORTS
433
State from making any law, in so far as such law
imposes reasonable restrictions on the exe.rcise of the
right conferred by the Raid sub-cl>tuse in the interests
of the security of the State, friendly relations with
foreign States, public order, decency or morality, or
in relation to con tern pt of court, defamation or incitement to an offence. "
Sirnil_arly therights to which sub-cl. (b) relates are
subject to the limitations to be found in cl. (3) of Art. 19,
which runs thus :
"Nothing in wb-clause (b) 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 public order, reasonable restrictioi1s on the exercise of the right conferred
bv the said sub-clause."
The Co,de of Criminal Procedure was an existing law
a.t the commencement of the Constitution. and so, in
the context of the. grounds on which its yalidity is
challenged before us, what we have to ascertain is
whether the ,conform! . thereunder of a po,ver on a
. magistrate to place restrictions on the rights to which
sub,cls. (a) and (b) of Art. 19 relate is reasonabl~. It
must be borne in mind that the provisions of s. 1'14
are attracted only in an emergency. Thereunder, the
:initial judge of the emergency is, no doubt., the District
M><gistrate or the Chief Presidency Magistrate or the
sub-divisional magistrate or any other magistrate
,specially empowered by the State Government. But
then, the maintenance of Jaw and order being the duty
and function of the executive department of the State
it is ine,·itable that the question of formation of the
.opinion as to whether there is an emergency or not
,must necessarily rest, in the first mstance, with those
, persons through whom the executive exercises its
4functions and discharges its duties.
It would, be
,impracticable and even impossible to expect the State
Gov.ernment itself. to exercise those duties and func-
, tio-ns in ,each and every case. The provisions of the
'section therefore which commit the power in this regard
. to a magistrate belonging to. any of the classes referred
, to :therein: cannot be regarded as unreasonable. We
55
Babulal Parate
v"
State of
Maharashtra
M1tdholkar ].
,•
Babulal Parate
v.
State of
M aharashlra
M udholkar J.
434
SUPREME COURT REPORTS
(196lj
ma.y a.lso point out tha.t the satisfaction of the magistr~te as to the necessity of promulgating an order
under s. 144 of the Code of Criminal Procedure is not
made entirely subjective by the section. . We may also
mention that though in an appropriate case a magistrate is empowered to make an order under this section
ex parte the law requires that he should, where possible serve a notice on the person or persons against
whom the order is directed before passing that order.
Then sub-s. (4) provides that 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. This clearly shows that even
where an ex parte order is made the person or persons
affected thereby have a right to challenge the order of
the magistrate. Sub-s. (5) provides that where such a·
challenge is ma.de, the magistrate shall give an early
opportunity to the person concerned of appearing
before him and showing cause against the order. The
decision of the magistratein such a proceeding would
undoubtedly be a judicial one inasmuch as it will have
been arrived at after hearing the party affected by the
order. Since the proceeding before the magistrate
would be a judicial one, he will have to set aside the
order unless he comes to the conclusion that the
grounds on which it rests are in law sufficient to warrant
it. Further, since the propriety of the order is open to
challenge it cannot be said that by reason of the wide
amplitude of the power which s. 144 confers on certain
magistrates it places unreasonable restrictions on
certain fundamental rights.
Learned counsel, however, says that the right oonfe1·red on the aggrieved person to challenge the order
of the magistrate is illusory as he would be a judge
with regard to his own decision. This argument would
equally apply to an application for review ma.de in a
civil proceeding and we do not think tha.·~ it is at all a
good one. Again, though no appeal ha.a been provided
in the Code against the Magistrate's order under s. 144,
the High Court has power under s. 435 read with s. 439
of the Code to entertain an application for the revision
of such an order, The vawers of the High Court ill
3 S.C.R.
SUPREME COURT REPORTS
435
dealing with a revision application are wide enough to
enable it to quash an order which cannot be supported
by the materials upon which it is supposed to be based.
We may point out that suh.s. (1) of s. 144 requires a
magistrate who makes an order thereunder to state
therein the material facts upon which it is based and
thus the High Court will have before it relevant material and would be in a position to consider for itself
whether that material is adequate or not.
As an
instance of a case where the High Court interfered
with an order of this kind, we may refer to a decision
in P. T. Chandra, Editor, Tribune v. Emperor(1). There,
the learned judges quite correctly pointed out that the
propriety of the order as well as its legality can he
considered by the High Court in revision, though in
examining the propriety of the order the High Court
will give due weight to the opinion of the District
Magistrate who is the man on the spot and responsible
for the maintenance of public peace in the district. In
that case the learned judges set aside an order of the
District Magistrate upon the ground that there was no
connection between the act prohibited and the danger
apprehended to prevent which the order was passed.
We would also like to point out that the penalty for
infringing an order under s. 144 is that provided in
s. 188, Indian Penal Code. When, therefore, a prosecution is launched thereunder, the validity of the order
under s. 144, Criminal Procedure Code, could be challenged. We are, therefore, unable to accept Mr. Mani's
contention that the remedy of judicial review is illusory.
The argument that the test of determining criminality in advance is unreasonable, is apparently founded
upon the doctrine adumbrated in Scheneck's case(')
that previous restraints on the exercise of fundamental
rights are permissible only if there be a clear and
present danger. It seems to us, however, that the
American doctrine cannot be imported under our
Constitution because the fundamental rights guaranteed under Art. 19 (l) of the Constitution are not
absolute rights but, as pointed out in State of Madras
(I) A.I.R. 1942 Lah. 171.
(2) Schen"k v. U. S., 249 U. S, 47.
I96I
Babulal Parate
v.
State of
Maharashtra
M udholkar ] •
SUPREME COURT.REPORTS
[1961]
'"' '\
1961
\ v. V. G. Row(') are snbject to. the restrictions placed
·
in the subsequent clauses of Art. 19. There is nothing
Babul~l Parate
.
h A
·
C
·
·
d"
1 (2
mt e
mencan onst1tut10n corre,<p_on mg to. c s.
)
- v:
State of
to (6) of Art. 19_ of our Constitution •... The Fourteenth
Maharashtra
Amendment to the U.S. Constitution provides·, among
other things, , that '.' nci State shall m<1.ke or .enforce
· Mudholkar J. anyJaw which shall abridge the privileges or immunities ofcitizen·s of the United States ;'nor shall any
State _depl:ive any person of _life, liberty, or property,
-·without due process of law; ...... ,.
.
-
· The framework of our Constitution is different from
that of the Constitution of the United States.· Then
agafo.; the Supreme Court of. the United. States has
he!d that the privileges and immunities conferred by
the. Constitution are subject to social control by resort
to the doctrine of police power. ' It-is .in:the light of
·this background that the test·laid do'wn .in Scheneck's
case (') has to be understood.
., . _ _ .. . . . ·.
\The language of s. 144,is somewhat different.·.· The
test laid down in the section is not merely "likelihood''. or', "tendency". The section says that the
magistrate must lie satisfied that-:immediate preven"
tion of particular acts is necessary to counteract danger
to. public safety. etc. , The power conferred _by ·the
seCtion is -exercisable not only ·where present danger
exists but is ·exercisable also ,when there is an apprehension :of danger. " . -·
.. ·
·· : Ap.art from this it is worthy of note that in Scheneck's
case(') the Supreme Court was concerned with the right
'of freedom of speech and it observed :
• . · ·
. . ·
_ . · "It well. may be that _the prohiliition of law
· ~·abridging the. freedom of speech is not. confin_ed to
-. ·previous .restraints, although to prevent them may
· ·have been the main purpose ...•...... ,Ve admit that ill
'.' many 'places and in ordinary times the defendants,
. ,in sayin1(all. that.was said .in the circular, would.
hav:e been within their· c~:1stitutional rights. But
'',the character of every act depentb npun the circum-
' stances in which it is done ... .'.~ ... The most strincrent
.
-.,
'
'
'
0
. protection of free 'speech would not protect a. man·
.· ~
.f~lsely shouting fire . in a: theatre, and causing a
11> 1195•J s.c.R. 597.
<•1 249·v:s;· 47.
3 S.C.R.
SUPREME COURT REPORTS
437
panic. It does not even protect a man from an
injunction against uttering words that may have all
the effect of force ......... The question in every case
is whether the words used are used in such circumstances and are of such a nature as to create a clear
and present danger that they will bring about the
substantive evils that Congress has a right to
prevent. It is a question of proximity and degree."
Whatever may be the position in the United States
it seems to us clear that anticipatory action of the
kind permissible under s. 144 is not impermissible
under els. (2) aud (3) of Art. 19. Both in cl. (2) (as
amended in 1951) and in cl. (3) power is given to the
legislature to make laws placing reasonable restrictions on the exercise of the rights conferred by these
clauses in the interest, among other things, of public
order. Public order has to be maintained in advance
in order to ensure it and, therefore, it is competent to
a legislature to pass a law permitting an appropriate
authority to take anticipatory action or place anticipatory restrictions upon particular kinds of acts in an
emergency for the purpose of maintaining public order.
We must, therefore, reject the contention.
It is no doubt true that since the duty to maintain
law and order is cast upon the Magistrate, he must
perform that duty and not shirk it by prohibiting or
restricting the normal activities of the citizen. But it
is difficult to say that an anticipatory action taken by
such an authority in an emergency where danger to
public order is genuinely apprehended is anything
other than an action done in the discharge of the duty
to maintain order. In such circumstances that could
be the only mode of discharging the duty. We, therefore, reject the contention that s. 144 substitutes
suppression of lawful activity or right for the duty of
public authorities to maintain order.
Coming to the order itself we must consider certain
objections of Mr. Mani which are, in effect, that there
are three features in the order which make it unconstitutional. In the first place, according to him the
order is directed against the entire pubiic though the
magistrate has stated clearly that it was promulgated
Babulal Parale
v.
State of
Maharashtra
M udholkar J.
438
SUPREME COURT REPORTS
[1961)
I96I
because of the serious turn which an industrial dispute
Bab.Ual p.,.1, had taken. Mr. Ma.ni con tends that it is unreasonable
v.
State of
Maharashtra
to place restrictions on the movements of the public
in general when there is nothing to suggest that
members of the public were likely to indulge in
activities prejudicial to public order. It is true that
Mudh•lkar ].
h
·
b
t ere is no suggest10n that the general pu lie was
involved in the industrial dispute. It is also true that
by operation of the order the movements of the members of the public would be restricted in particular
areas. But it seems to us that it would be extremely
(
difficult for those who are in charge of law and order
to differentiate between members of the public and
members of the two textile unions and, therefore, the
only practical way in which the particular activities
- referred to in the ord,er could be restrained or restricted would be by making those restrictiom1 applicable
to the public generally.
The right of citizens to take out processions or to hold
public meetings flows from the right in Art. 19(l)(b)
to assemble peaceably and without arms and the
right to move anywhere in the territ,ory of India. If,
therefore, any members of the public unconnected with
the two textile unions wanted to exercise these rights
it was open to them to move the District Magistrate
and apply for a modification of the order by grantinp
them an exemption from the restrictions placed by the
order.
Mr. Mani's contention, and that is his second ground
of attack on the Magistrate's order, is that the only
exception made in the order is with respect to funeral
processions and religious processions and, therefore, it
would not have been possible to secure the District
Magistrate's permission for going out in procession for
some other purpose or for assembling for some other
purpose in the area to which the order applied. So
far as the customary religious or ftHleral processions
are concerned, the exemption has been granted in the
order itself that if anyone wanted to take out a procession for some other purpose which was lawful it was
open to them under s. 144, sub-s. (4), to apply for an
alteration of the order and obtain a special exemption.
I
3 s.c.R.
SUPREME COURT REPORTS
439
Mere omission of the District Magistrate to make the
exemption clause of the order more comprehensive
would not, in our opinion, vitiate the order on the
ground that it places unreasonable restrictions on
certain fundamental rights of citizens.
·
The third and last ground on which Mr. Mani
challenged the constitutionality of the order was that
while the order prohibits the shouting of provocative
slogans in public places etc., it does not give any
definition of what was meant by the expression "provocative slogans". Therefore, according to Mr. Mani,
~·his order is vague and must be deemed to be placing
unreasonable restrictions on the rights of free speech
of citizens. It seems to us.that the expression" provocative slogans " has necessarily to be understood in
the ·context in which it has been used in th11 order and,
therefore, it cannot be regarded as vague.
We have, therefore, reached the conclusion that the
order of the District Magistrate is not unconstitutional
either because s. 144 is itself violative of fundamental
rights recognised in Art. 19 or on the ground that it
is vague and places unreasonable restrictions on those
fundamental rights.
We, therefore, dismiss this
petition.
Shortly after this petition was ma.de to this Court, the
petitioner presented a special leave petition in which
he ~eeks to challenge the judgment of the Nagpur
High Court dated April 9, 1956, dismissing his writ
petition to that High Court. The points raised in the
Special Leave Petition a.re similar to those raised in
this petition. Since we are dismissing this petition,
there can be no question of granting the special leave
to the petitioner to appeal against the judgment of the
Nagpur High Court.
Pet it ion dismissed.
Babulal PartJle
v.
Stal• of
M allarashtra
Mudholkar ).
!