Prohibitory order means any order that is pronounced by the competent authority, viz., the central or the state government, or the court, to prohibit and/ or restrict an act being done.
Prohibitory has varied sections under it. Some are as follows:
Section 144 of Cr.P.C. –
This section gives powers to the court to order when there arises a situation that there are immediate actions required. Ex: In the recent coronavirus pandemic, there is Section 144 alert throughout India, and no one is allowed to step out of their houses except for buying essentials for the home. Even during the Citizenship Amendment Act protest, this was imposed in various states of India including Bengaluru. Under Section 144 of the Criminal Procedure Code (Cr.P.C) of 1973 authorized the Executive Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. Under this section, any person engaging in unlawful assembly can be booked under rioting. This section majorly prohibits public gathering.
Section 37 of Bombay Police Act, 1951 –
Such a prohibitory order is valid for 15 days, and can be renewed from time to time. This act helps to prevent disorder. This section prohibits the assembly of more than 5 members, procession, loud speakers, amplifiers, cracker bursting etc. of any kinds. Also, citizens are not allowed to carry any form of arms and other explosive materials or materials that can cause harm to others with them[1].
Section 141 of I.P.C.-
It is an unlawful assembly under this section if more than five (5) people assemble to protest or to commit criminal trespass or resist/ omit from doing any legally bound act or commit an unlawful act. However, this can be stopped by passing a prohibitory order.
Section 132(3) of Income Tax Act, 1961-
In a case held by the Supreme Court[2] in the year 1984, the process of law was highly abused for gaining an undeserved advantage. The respondent challenged the court for the prohibitory order issued to him on the movement of his goods, and obtained an ex-parte interim injunction by the Calcutta High Court judge, prohibiting the petitioners from the effect of the prohibitory orders. However, the ex-parte injunction was asked so that they could take the goods away from the eyes of the Income tax department. The special leave petition to stop the payment by the respondent was dismissed.
In another case of Rakesh Sarin v. Deputy Commissioner of Income Tax and others, a search in the residence and office regular tax payer was initiated, it was found that there was something fishy, and found and seized a few documents, and things, separate panchanamas were prepared and prohibitory orders were passed under section 132(3) of the Income Tax Act, regarding the operations of the lockers, bank accounts, etc. They also got a prohibitory order for not tampering the wooden almirah and the steel cabinet. However, their validity period was only 60 days, under secion 132 (8A). But they did nothing but just seize these above-mentioned items. There was no search executed. It was argued by the respondent counsel that the time limit was only directory and not mandatory. After all the arguments, it favoured the petitioner and the writ petition was allowed, as prayed for.
Section 233 of The Panchayat Raj Act-
In the case of Dishnet wireless Ltd. V. Circle Inspector of Police, the petitioner was to build a tower with all the licences. According to this section it is necessary to have a licence for functioning of the tower. But the company argues that it is not necessary as they are just going to construct the tower now, and that the local authorities cannot stop their construction without the prohibitory order from the court for the same. It was argued that the company should be effectively supported for the construction and the case was dismissed accordingly, i.e. in favour of the company, allowing their construction.
Revenue Recovery Case-
A case in Kerala High Court[3], held that the prohibitory orders issued were illegal and that the proceedings against the asset of the deceased in spite of it being in the hands of his heir cannot be proceeded with.
Section 275A of the Income tax Act, 1961- In a case in Patna High Court[4], the petitioner was held under section 275A of the Income tax Act, 1961, and was directed to issue summons against him. However, the prohibitory orders were with regard to specific accounts only, and that they were individualistic in nature. Due to this, there were no transactions taking place. Thus, the proceedings of the case were quashed, as it was alleged to have been done in conspiracy and collusion, and the application was allowed to the extent to which he was to be allowed.
“The views of the authors are personal“
Reference
[1] Rajubhai Premabhai Patel vs State Of Gujarat on 7 September, 2018
[2] Deputy Director of inspection (intelligence) and others v. Vinod Kumar Didwania and another
[3] Anish P.K. vs. The Special Deputy Tahsildar (revenue recovery) and others; 19 January 2012
[4] Sanjay Sinha v Union of India and another; Crl. Misc. No. 8622 of 2003
