# STATE OF BIHAI v. K. K. MISRA & ORS

- **Citation:** [1970] 3 S.C.R. 181
- **Court:** Supreme Court of India
- **Decided:** 1969-10-29
- **Case number:** Civil Appeal No. 21 of 1966
- **Bench:** J. C. Shah, J. M. Shelat, C. A. Vaidialingam, K. S. Hegde, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-bihai-v-k-k-misra-ors-4898
- **Pages:** 17

## Headnote

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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 Magistrate of Jamshedpur passed <>rders under s. 144(1) against the respondents 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-
182
SUPREME COURT REPORTS
[1970] 3 s.c.R.
tions given in the exercise of that power need not be of a temporary
A
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]
B
(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 impdrtant tests to find out whether a restriction is
reasonable is
to
see
whether the ag

## Text

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181
A
STATE OF BIHAI..
v.
K. K. MISRA & ORS.
October 29, 1969
B
[J. C. SHAH, J. M. SHELAT, C. A. VAIDIALINGAM, K. S. HEGDE
AND A. N. RAY, JJ.]
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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 Magistrate of Jamshedpur passed <>rders under s. 144(1) against the respondents 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-
182
SUPREME COURT REPORTS
[1970] 3 s.c.R.
tions given in the exercise of that power need not be of a temporary
A
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]
B
(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 impdrtant tests to find out whether a restriction is
reasonable is
to
see
whether the aggrieved party has a right of representation against the resC
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
D
Since section 144(6) gives the power to impose the restrictions contemplated by it to the executive Government and not to a judicial authority 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
E
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 consideration 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
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BIHAR STATE V. K, K. MISRA (Shah, J.)
183
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]
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Case-law referred to.
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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 Government 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
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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-
184
SUPREME COURT REPORTS
[1970] 3 S.C.R.
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 application 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.
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This Court in Babula/ Parate v.
State of Maharashtra and
Ors.(') held that s. 144 is intended to secure the public weal by
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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 Constitution. 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
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(1) [19611 3 S.C.R. 42).
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BlliAR STATE V, K. K. MISRA (Shah, J.)
185
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 restriction 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, provides 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 Government.
On appropriate grounds the direction may be challenged
i/n a petition under Art. 226 of the Constitution. Again sub-s.
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( 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
186
SUPREME COURT REPORTS
[ 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 Government.
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 extrajudicial considerations, rescind a direction of the State Governm~t
is to overlook the distinction between abuse of power and noninvestment 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 exercise of that power haw lo be given due weigh! : Virendra v. The
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BIHAR STATE V. K. K. MISRA (Shah, J.)
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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 challenge 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 validity 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 declaration made by the State Government only removes the temporaly 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 reasonableness can be laid down as applicable to all cases.
Exercise of power under section 144 is intended to ensure the
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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
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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 circwnH
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.
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SUPREME COURT REPORTS
[1970] 3 s.c.R.
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 citizens 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 certificate 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 Procedure 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.
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BIHAR STATE I'. K. K. MISRA (Hegde, J.)
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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 connection Sbri K. N. Mishra, City Magistrate, J a.mshedpur passed an
order against respondent Verma under sub-s. ( 1) of s. 144, Criminal 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 informed 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 amshedpur, 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, specially 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.
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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 apprehension 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 satisfied 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
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BIHAR STATE v. K. K. MISRA (Hegde, !.)
191
~ 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-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 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 management, if such Magistrate considers that such direction is
likely to prevent, or tends to prevent, obstruction annoyance 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.
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(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 predecessor in office.
( 5) Where such an application is received, the
Magistrate shall afford to the applicant an early opportuinitv 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 representatioo 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
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BJHAR STATE v. K. K. MISRA (Hegde, J.)
193
( 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-
194
SUPREME COURT REPORTS
[ 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 adopted 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 direction 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 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. 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 predecessor 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
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BIHAR STATE v. K. K. MISRA (Hegde, J.)
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on behalf of the State of Bihar, Union of India and the AttorneyGeneral 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 Constitution has assigned to this Court the role of a Sentinel on the
quivive.