In order to maintain the public order and tranquillity among the people of the society the lawmakers of our country have taken commendable steps. The legal provisions pertaining to public order and tranquility have been primarily enshrined in the Code of Criminal Procedure, 1973. Though, various laws in regards to this matter have been also formulated subsequently.
The Chapter X of the Code of Criminal Procedure along with stating down the legal provisions regarding maintenance of public order and tranquillity also lays down the duties, powers and functions of the Executive Magistracy and the Police in this behalf.
This chapter is divided into four parts: – Part A– Unlawful Assemblies, Part B – Public Nuisances, Part C – Urgent Cases of Nuisance or Apprehended Danger and Part D –Disputes as to Immovable Property. This chapter encompasses a total of 21 sections which deal with the procedure step taken in the maintenance of public order and tranquillity. These provisions represent the mechanism of the procedure.
Part A – Unlawful assemblies:
The legal term is used to describe a group of people with the mutual intent of deliberate disturbance of the peace. If the group are about to start the act of disturbance, it is termed a rout; if the disturbance commenced, it is then termed a riot.
Dispersal of assembly by use of civil force (Section 129):
Any Executive Magistrate or officer in charge of a police station or any police officer not below the rank of a sub-inspector have the authority to command to disperse any unlawful assembly of five or more persons causing disturbance of the public peace. It is also the duty of the members of such assembly to disperse accordingly.
Any such assembly does not disperse even if after so commanded then in that case any officer mentioned above may proceed to disperse the unlawful assembly by force. They may also require help of members of armed forces or such people. It is the armed forces which help in dispersing such assemblies. It is also allowed to arrest and confine the persons who form such unlawful assembly. People forming such assemblies which are unlawful are punishable by law.
In the case, Nagraj vs. State of Mysore,here a Sub-Inspector of Police in the state of Mysore, had been alleged to have severely beaten a person X, and when he was requested by Y to excuse X while forcibly taking him away, fired at two people. The Court here, held this action of the sub-inspector using force to disperse an unlawful assembly by Section 129.
Use of armed forces to disperse assembly (section 130)
If any such unlawful assembly which has gathered does not get dispersed then is such case the Executive Magistrate of the highest rank has the authority to order armed force in order to disperse the assembly. This step is necessary for public security of country.
The magistrate may even direct, or as it may be necessary, even arrest and confine in order to disperse the assembly or have them punished according to law.
It is the duty of every such officer of the armed forces to obey such order as he considers fit. However while doing so, he shall use as little force, and do as little injury to person and property.
In the case, Re-Ramlila Maidan Incident vs Home Secretary and Ors, Personnel of the Rapid Action Force as well as the Central Reserve Police Force were called upon for dispersing the assembly of protestors gathered at Ramlila Maidan.
Power of certain armed force officers to disperse assembly (Section 131)
This section empowers any commissioned or gazette officer of the armed forces to disperse such unlawful assembly with the help of the armed forces under his command. They also have the power to arrest and confine any persons forming part of it. Such officers are only authorised in case no executive magistrate is reachable and when public security is clearly endangered by such unlawful assemblies.
Protection against prosecution for acts done (Section 132)
There will not be any prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 shall be instituted in any Criminal Court except—
1. With the sanction of the Central Government where such person an officer or member of the armed forces;
2. With the sanction of the State Government in any other case.
However, No –
1. Executive Magistrate or police officer acting under any of the said sections in good faith;
2. Person doing any act in good faith in compliance with a requisition under section 129 or section 130;
3. Officer of the armed forces acting under section 131 in good faith;
4. Member of the armed forces doing any act in obedience of any order which he was bound to obey, shall be deemed to have thereby, committed an offence.
Part B – Public Nuisance
The proceedings under this section are enacted in order to maintain peace and tranquillity and the orders rendered under these sections are merely temporary orders. The orders taken out by the court are coterminous with the judgment or decree of the civil court. As soon as the civil court declares the right of the parties the temporary orders rendered by the courts under Sections 133, 145 and 147 of the Code come to an end.
In fact, this section has been formulated with the aim to deal with emergent situations. Hence in order to invoke Section 133(l) (a), the nuisance has got to be a public nuisance and then only it can be stated to affect the members of the public and hence can be removed from the public place.
In Section 268 of the Indian Penal Code the phrase “public nuisance” has been defined and this definition can very well be imported for the purposes of Section 133. According to the meaning of this definition, it is necessary that the injury, danger or annoyance must be caused to the public, or to the people in the vicinity or to persons who may have occasion to exercise any public right in order to constitute a public nuisance.
The object and purpose of this section is to prevent public nuisance that if the magistrate fails to take immediate recourse to Section 133, irreparable damage would be done to the public. However, under this particular section no action seems possible if the nuisance has been in existence for a long period. So in such a case, the only remedy open to the aggrieved party is to move the civil court.
The Court cited the case of Shiraz Cinema v. Srinagar Municipal Corporation, Crimes (HC) to state that the object of Section 133 was not to settle private disputes between parties but to ensure that the public is protected from the inconvenience of a public nuisance. It also rebuked the respondent for failing to file its written submissions before the CJM, instead choosing to pass the aforementioned order. The Court thus allowed the petition and stated that an order can be passed by the respondents provided that the petitioners and other aggrieved parties are given an opportunity to state their objections. [Girdhari Lal v. State of Jammu and Kashmir].
Hence we see that the provisions related to public nuisances described under section 133 to 143 of Criminal Procedure Code envisages a range of situations and circumstances in which a person may be directed to behave as ordered. The orders could be for removal of obstructions or nuisance in public places; repair/removal of unsafe buildings, trees or structures; control of any dangerous animal; regulation of trade or any trade or occupation or the keeping of any goods or merchandise etc. The purport of Section 133 Criminal Procedure Code is clearly that the actions of an individual or individuals that cause harm, discomfort or pose any danger to society at large can be regulated or prohibited. Similarly, Section 143 Criminal Procedure Code empowers a magistrate to prohibit repetition or continuance of a public nuisance.
Part C –Urgent Cases of Nuisance or Apprehended Danger
The provisions related to Urgent Cases of Nuisance or Apprehended Danger described under Section 144 of Criminal Procedure Code is arguably the best known section of the Criminal Procedure Code. This section empowers a magistrate to act for the immediate prevention of any of the situations envisaged in Section 133 Criminal Procedure Code and a magistrate has the authority to direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate has been considering that such given direction is able to prevent, or tends to prevent, 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 prohibitory order under Section 144 Criminal Procedure Code can remain in effect for two months; or up to six months if so directed by the state government. Section 144 Criminal Procedure Code in fact empowers the Executive Magistrates to impose several kinds of prohibitory orders. It is a very effective tool in the hands of the administration to prevent outbreak of violence.
It has been seen that the powers bestowed upon the Magistrate mentioned in Section 144 of the Code are very wide and must be exercised with discretion and discrimination. Under Section 144 of the Code the urgency of a case of nuisance or apprehended danger is essential to its treatment, and the order to be passed under this Section must be of temporary nature.
The Magistrate is required to proceed only when immediate prevention or speedy remedy is desirable and he must be satisfied that there is danger to human life or disturbance of public tranquillity or a riot or an affray under this section.
This section enables the magistrate to suspend the lawful rights of the public if they think that such a suspension will be in the interest of public peace and safety.
These restrictions are within the limits of saving provisions of clauses (2) and (3) of Article 19 of the Constitution because the restrictions are in the interest of public order and general public.
Section 144 of the Code is intended to meet mandatory injunction cases which are of emergency or cases of temporary urgency to keep things in status quo and not to pass an order which in favour of one of the two opposite parties whereby he is able to deprive the other completely of his ordinary legal rights.
Substantiating and basing the order with proper evidence is crucial under section 144. The order under Section 144 is an executive order, not a judicial order. The order must be in writing. A statement of the ‘material facts’ should be contained in the order which the magistrate considers to be facts of the case and upon the footing of which he bases his order.
The reasons for invoking and making order under Section 144 are to prevent:
(i) all kinds of obstruction; (ii) or annoyance; (iii) or any sort or sorts of injury to any person lawfully employed; (iv) or any types or type of danger to human life, health or safety; (v) or any sort of disturbance of the public tranquillity; (vi) or any riot, or any (vii) type or types of affray.
The following orders are example of some valid order under Section 144 of the Code:
(1) An order which restrains a person from building a wall.
(2) An order which directs a person to cut the bundh created by him.
(3) An order which prohibits burials in certain places on sanitary ground.
(4) An order which restrains other persons from reciting sankalpam on the bathing ghat of a holy tirtha.
(5) An order which directs the two rival sects of Mohammedans should enter and worship in a particular mosque only at particular hours.
(6) An order which prohibits a meeting, if owing to the prevalence of ill feeling between certain persons likely to attend the meeting a breach of the peace is to be apprehended.
(7) An order which prohibits a procession on the ground that the magistrate would not be able to prevent a breach of the peace with the force at his disposal.
(8) An order which bans the sale of lottery tickets of both private and State as it is of pernicious nature.
The application of this section and the necessary principles which need to be kept in mind have been elaborated in the case of Manzur Hasan vs. Muhammad Zaman and approved in the case of Shaik Piru Bux vs. Kalandi Pati.
Part D –Disputes as to Immovable Property
Under Section 145, Cr.P.C. an executive Magistrate can take action when from a police report or other information received by him, he is satisfied that a dispute likely to cause a breach of the peace exists concerning any immovable property, i.e., land or water or the boundaries thereof, or buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such said property, which falls within the local limits of his jurisdiction.
It may be that in a particular case he does not write as exhaustive a judgment as one would expect, but from this alone it cannot be inferred that he has not applied his mind judicially. is the cumulative effect of the entire evidence that has to be examined and to be taken into consideration. Niranjan Singh Sunder Singh and others vs. Kasturi Lai and others, stated the same.
As the preliminary order is to be passed only after the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace, it must necessarily refer to the time and date when the Magistrate is so satisfied and cannot relate to any earlier time or date when the Magistrate had not yet been so satisfied.
Even after the police report is sent to the Magistrate, the Magistrate may require other information before that he feels satisfied that a dispute likely to cause a breach of the peace exists and passes a preliminary order in that behalf. It is the preliminary order alone that indicates the time when the necessary satisfaction was reached by the Magistrate.
That some time elapsed between the receipt of the police report or the other information and the passing of the preliminary order cannot therefore be necessarily attributed to the delay on the part of the court or to its fault. State v. Ramjivan Kaluram and another, the same was held.
The Magistrate shall cancel his initial order and stay all further proceedings thereon if any party shows that no dispute as aforesaid exists or has existed, but subject to such cancellation the order of the Magistrate initially passed shall be final.
The magistrate has the authority to issue an order declaring such party to be entitled in possession thereof until evicted there from in due course of law, i.e., until the question of title is decided in a civil court if he decides that one of the parties was or should be treated as being in possession of the said subject.
If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency or decides that no such party was then in any possession, or is unable to decide as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute, until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.
If there is no longer any likelihood of a breach of the peace in regard to the subject of dispute, the Magistrate concerned may withdraw the attachment at any time. [Section 146(1)}
Also in cases where the Magistrate attaches the subject of dispute, he may as well if no receiver in relation to such subject of dispute has been appointed by any such civil court, may in such situation make any arrangements as he considers proper for looking after the property or, if he thinks fit, appoint a receiver, who shall have, with accordance to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908.
Frequently Asked Questions:
1) What are the Powers of Magistrate under Maintenance of Public Order and Tranquility?
As the Magistrate exercises functions and powers under various provisions of the criminal procedure code he is the Officer in overall charge of Law and Order and internal security in the society.
1. Power of Magistrate to direct local investigation and examination of an expert.
2. Power of Magistrate to furnish written instructions, etc.
3. Magistrate may prohibit the continuance or repetition of public nuisance.
4. Power to prohibit carrying arms in procession or mass drill or mass training with arms.
5. Power to attach subject of dispute and to appoint receiver.
2) What are the Powers of police under Maintenance of Public Order and Tranquillity?
The Police force in the country is entrusted with the responsibility of maintenance of public order and prevention and detection of crimes. The Powers of the Administration in the maintenance of the public order and tranquillity have been specifically mentioned in both Criminal Procedure Code and the Police Act, 1861, the maintenance of public order, other sections of the Criminal Procedure Code empower officers to direct individuals to take such actions or behave in a particular manner as might be conducive to the maintenance of public order. The police to maintain the public peace and prevent the commission of offence and of public nuisance, or any other danger to public.
3) Why criminal procedure code included the provision of maintenance of public order and tranquillity?
It is the fundamental duty of the State to maintain public order. As a civilized society everybody accept it that peace and tranquillity is very necessary for the development and to live a good and healthy life. The maintenance of law and order is primary function of the Magistrate. According to the Criminal Procedure Code and others Act, the Magistrate is responsible for maintaining law and order in the society. Maintenance of public order and tranquillity in the public discourse is the primary objective of any government for a country to grow, develop and reach new heights of good governance, because of these provisions government should be able to give its citizens a peaceful environment. The duty of the Executive Magistracy and the Police to maintain public order is thus clearly laid down by law.
Edited by Shuvneek Hayer
Approved & Published – Sakshi Raje
Referances
1) 1964 AIR 269
2) (2012)5SCC1
3) 2 (1988) 250
4) 2018 SCC 793
5) (1921) ILR 43 All 692
6) 1970 AIR 1885
7) A.I.R. 1971 Pun.,4
8) A.I.R. 1962 Bom. 8
9) www.latestlaws.com
