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Code--I
Criminal Procedure Code

TOPIC OF MY PROJECT

- Security for keeping the Peace and Good

Behaviour and Maintenance of Public Order
and Tranquility

Submitted By- Submitted to-

Shubham Gupta Prof. Vandana Bhanot

Roll No- 81

LLB 5th Semester

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ACKNOWLEDGEMENT

I would like to express my special thanks of

gratitude to my teacher Prof. Vandana Bhanot,
who gave me the golden opportunity to do this
wonderful project on ‘Suspension, she also helped
me in completing my project. I came to know
about so many things to which I am thankful.

Secondly, I would like to thank my parents and

friends who helped a lot in finalizing this project
within the limited time span.
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SECURITY FOR KEEPING THE PEACE AND FOR GOOD

BEHAVIOUR
106. Security for keeping the peace on conviction.

When a Court of Session or Court of a Magistrate of the first class convicts a person
of any of the offences specified in sub-section (2) or of abetting any such offence
and is of opinion that it is necessary to take security from such person for keeping
the peace, the Court may, at the time of passing sentence on such person, order
him to execute a bond, with or without sureties, for keeping the peace for such
period, not exceeding three years, as it thinks fit.

The offences referred to in sub-section (1) are-

(a) any offence punishable under Chapter VIII of the Indian Penal Code, other than
an offence, punishable under Section 153A or section 153B or section 154 thereof;
(b) any offence which consists of, or includes, assault or using criminal force or
committing mischief;
(c) any offence of criminal intimidation;
(d) any other offence which caused, or was intended or known to be likely to cause,
a breach of the peace.

107. Security for keeping the peace in other

other cases.

(1) When an Executive Magistrate receives information that any person is likely to
commit a breach of the peace or disturb the public tranquility or to do any wrongful
act that may probably occasion a breach of the peace or disturb the public
tranquility and is of opinion that there is sufficient ground for proceeding, he may
in the manner hereinafter provided, require such person to show cause why he
should not be ordered to execute a bond with or without sureties for keeping the
peace for such period, not exceeding one year, as the Magistrate thinks fit.

(2) Proceeding under this section may be taken before any Executive Magistrate
when either the place where the breach of the peace or disturbance is
apprehended is within his local jurisdiction or there is within such jurisdiction a
person who is likely to commit a breach of the peace or disturb the public
tranquility or to do any wrongful act as aforesaid beyond such jurisdiction.
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108. Security for good behaviour

(1) When an Executive Magistrate receives information that there is within his local
jurisdiction any person who, within or without such jurisdiction,-
(i) either orally or in writing or in any other manner, intentionally disseminates or
attempts to disseminate or abets the dissemination of,-

(a) any matter the publication of which is punishable under section 124A or section
153A or section 153B or section 295A of the Indian Penal Code, or
(b) any matter concerning a Judge acting or purporting to act in the discharge of his
official duties which amounts to criminal intimidation or defamation under the
Indian Penal Code.

109. Security for good behaviour from suspected persons.

When an Executive Magistrate receive information that there is within his local
jurisdiction a person taking precautions to conceal his presence and that there is
reason to believe that he is doing so with a view to committing a cognizable
offence, the Magistrate may, in the manner hereinafter provided, require such
person to show cause why he should not be ordered to execute a bond, with or
without sureties, for his good behaviour for such period, not exceeding one year, as
the Magistrate thinks fit.

110. Proceedings against Habitual Offenders.

Offenders.

When an Executive Magistrate receives information that there is within his local
jurisdiction a person who-
(a) is by habit a robber, house-breaker, thief, or forger, or
(b) is by habit a receiver of stolen property knowing the same to have been stolen,
or
(c) habitually protects or harbourer thieves, or aids in the concealment of disposal
of stolen property, or
(d) habitually commits, or attempts to commit, or abets the Commission of, the
offence of kidnapping, abduction, extortion, cheating or mischief, or any offence
punishable under Chapter XII of the Indian Penal Code, or under Section 489A,
section 489B, section 489C or section 489D of that Code, or
(e) habitually commits, or attempts to commit, or abets the Commission of,
offences, involving a breach of the peace, or
(f) habitually commits, or attempts to commit, or abets the commission of offences.
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111. Order to be made.

When a Magistrate acting under section 107, section 108, section 109 or section
110, deems it necessary to require any person to show cause under such section he
shall make an order in writing, setting forth the substance of the information
received, the amount of the bond to be executed, the term for which it is to be in
force, and the number, character and class of sureties (if any) required.

112. Procedure in respect of person present in Court.

If the person in respect of whom such order is made is present in Court, it shall be
read over to him, or, if he so desires, the substance thereof shall be explained to
him.

113. Summons or warrant in case of person not so present.

If such person is not present in Court, the Magistrate shall issue a summons
requiring him to appear, or, when such person is in custody, a warrant directing the
officer in whose custody he is to bring him before the Court:
Provided that whenever it appears to such Magistrate, upon the report of a police
officer or upon other information (the substance of which report or information
shall be recorded by the Magistrate), that there is reason to fear the Commission of
a breach of the peace, and that such breach of the peace cannot be prevented
otherwise than by the immediate arrest of such person, the Magistrate may at any
time issue a warrant for his arrest.

114. Copy of order to accompany summons or warrant.

warrant.

Every summons or warrant issued under section 113 shall be accompanied by a

copy of the order made under section 111, and such copy shall be delivered by the
officer serving or executing such summons or warrant to the person served with, or
arrested under, the same.

115. Power to dispense with personal attendance.

The Magistrate may, if he sees sufficient cause, dispense with the personal
attendance of any person called upon to show cause why he should not be ordered
to execute a bond for keeping the peace or for good behaviour and may permit him
to appear by a pleader.
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116. Inquiry as to truth of information.

(1) When an order under section 111 has been read or explained under section 112
to a person in Court, or when any person appears or is brought before a Magistrate
in compliance with, or in execution of, a summons or warrant, issued under section
113, the Magistrate shall proceed to inquire into the truth of the information upon
which action has been taken, and to take such further evidence as may appear
necessary.

(2) Such inquiry shall be made, as nearly as may be practicable, in the manner
hereinafter prescribed for conducting trial and recording evidence in summons-
cases.

(3) After the commencement, and before the completion, of the inquiry under sub-
section (1), the Magistrate, if he considers that immediate measures are necessary
for the prevention of a breach of the peace or disturbance of the public tranquility
or the Commission of any offence or for the public safety, may, for reason to be
recorded in writing, direct the person in respect of whom the order under section
111 has been made to execute a bond, with or without sureties, for keeping the
peace or maintaining good behaviour until the conclusion of the inquiry and may
detain him in custody until such bond is executed or, in default of execution, until
the inquiry is concluded:

Provided that-
(a) no person against whom proceedings are not being taken over under section
108, section 109, or section 110 shall be directed to execute a bond for maintaining
good behaviour;

(b) the conditions of such bond, whether as to the amount thereof or as to the
provision of sureties or the number thereof or the pecuniary extent of their liability,
shall not be more onerous than those specified in the order under section 111.

(4) For the purposes of this section the fact that a person is an habitual offender or
is so desperate and dangerous as to render his being at large without security
hazardous to the community may be proved by evidence of general repute or
otherwise.

(5) Where two or more persons have been associated together in the matter under
inquiry, they may be dealt within the same or separate inquiries as the Magistrate
shall think just.
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(6) The inquiry under this section shall be completed within a period of six months
from the date of its commencement, and if such inquiry is not so completed, the
proceedings under this Chapter shall, on the expiry of the said period, stand
terminated unless, for special reasons to be recorded in writing, the Magistrate
otherwise directs:
Provided that where any person has been kept in detention pending such inquiry,
the proceeding against that person, unless terminated earlier, shall stand
terminated on the expiry of a period of six months of such detention.

(7) Where any direction is made under sub-section (6) permitting the continuance of
proceedings, the Sessions Judge may, on an application made to him by the
aggrieved party, vacate such direction if he is satisfied that it was not based on any
special reason or was perverse.

117. Order to give security.

If, upon such inquiry, it is proved that it is necessary for keeping the peace or
maintaining good behaviour, as the case may be, that the person in respect of
whom the inquiry is made should execute a bond, with or without sureties, the
Magistrate shall make an order accordingly:
Provided that-
(a) no person shall be ordered to give security of a nature different from, or of an
amount larger than, or for a period longer than, that specified in the order made
under section 111;
(b) the amount of every bond shall be fixed with due regard to the circumstances of
the case and shall not be excessive;
(c) when the person in respect of whom the inquiry is made is a minor, the bond
shall be executed only by his sureties.

118. Discharge of person informed against.

If, on an inquiry under section 116, it is not proved that it is necessary for keeping
the peace or maintaining good behaviour, as the case may be, that the person in
respect of whom the inquiry is made, should execute a bond, the Magistrate shall
make an entry on the record to that effect, and if such person is in custody only for
the purposes of the inquiry, shall release him, or, if such person is not in custody,
shall discharge him.
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119. Commencement of period for which security is required.

(1) If any person, in respect of whom an order requiring security is made under
section 106 or section 117, is, at the time such order is made, sentenced to, or
undergoing a sentence of, imprisonment, the period for which such security is
required shall commence on the expiration of such sentence.

(2) In other cases such period shall commence on the date of such order unless the
Magistrate, for sufficient reason, fixes a later date.

120. Contents of bond.

The bond to be executed by any such person shall bind him to keep the peace or to
be of good behaviour, as the case may be, and in the latter case the commission or
attempt to commit, or the Abetment of, any offence punishable with imprisonment,
wherever it may be committed, is a breach of the bond.

121. Power to reject sureties.

(1) A Magistrate may refuse to accept any surety offered, or may reject any surety
previously accepted by him or his predecessor under this Chapter on the ground
that such surety is an unfit person for the purposes of the bond;
Provided that, before so refusing to accept or rejecting any such surety, he shall
either himself hold an enquiry on oath into the fitness of the surety, or cause such
inquiry to be held and a report to be made thereon by a Magistrate subordinate to
him.

(2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the
surety and to the person by whom the surety was offered and shall, in making the
inquiry, record the substance of the evidence adduced before him.

(3) If the Magistrate is satisfied, after considering the evidence so adduced either
before him or before, a Magistrate deputed under sub-section (1), and the report of
such Magistrate (if any), that the surety is an unfit person for the purposes of the
bond, he shall make an order refusing to accept or rejecting, as the case may be,
such surety and recording his reasons for so doing;
Provided that, before making an order rejecting any surety who has previously
been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit,
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and cause the person for whom the surety is bound to appear or to be brought
before him.

122. Imprisonment in default of security.

(a) If any person ordered to give security under section 106 or section 117
does not give such security on or before the date on which the period for
which such security is to be given commences, he shall, except in the case
next hereinafter mentioned, be committed to prison, or, if, he is already in
prison, be detained in prison until such period expires or until within such
period he gives the security to the Court or Magistrate who made the order
requiring it.

(b) If any person after having executed a bond without sureties for keeping the
peace in pursuance of an order of a Magistrate under section 117, is proved, to the
satisfaction of such Magistrate or his successor-in-office, to have committed breach
of the bond, such Magistrate or successor-in-office may, after recording the
grounds of such proof, order that the person be arrested and detained in prison
until the expiry of the period of the bond and such order shall be without prejudice
to any other punishment or forfeiture to which the said person may be liable in
accordance with law.

123. Power to release persons imprisoned for failing to give security.

(1) Whenever the District Magistrate in the case of an order passed by an Executive
Magistrate under section 117, or the Chief Judicial Magistrate in any other case is of
opinion that any person imprisoned for failing to give security under this Chapter
may be released without hazard to the community or to any other person, he may
order such person to be discharged.

(2) Whenever any person has been imprisoned for failing to give security under this
Chapter, the High Court or Court of Session, or, where the order was made by any
other Court, the District Magistrate, in the case of an order passed by an Executive
Magistrate under section 117, or the Chief Judicial Magistrate in any other case,
may make an order reducing the amount of the security or the number of sureties
or the time for which security has been required.
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(3) An order under sub-section (1) may direct the discharge of such person either
without conditions or upon any conditions which such person accepts;
Provided that any condition imposed shall cease to be operative when the period
for which such person was ordered to give security has expired.

124. Security for unexpired period of bond.

(1) When a person for whose appearance a summons or warrant has been issued
under the proviso to sub-section (3) of section 121 or under sub-section (10) of
section 123, appears or is brought before the Magistrate or Court, the Magistrate or
Court shall cancel the bond executed by such person and shall order such person
to give, for the unexpired portion of the term of such bond, fresh security of the
same person description as the original security.

(2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive)
be deemed to be an order made under section 106 or section 117, as the case may
be.

Maintenance of Public Order and Tranquility

LEGAL PROVISION IN REGARDS TO THE MAINTENANCE OF PUBLIC ORDER

The maintenance of Public Order and to ensure tranquility in the public discourse is
the primary objective of any government. For a country to grow, develop and reach
new heights of good governance, it is of utmost importance that its government
should be able to give its citizens a peaceful and egalitarian environment. In a
situation of failure to provide the above the consequences can be dire and
unpleasant. When the administrative machinery of a country will be unable to
maintain the public order in its civil society then it society may eventually be
subjected to a situation of chaos and panic and ultimately would be detrimental for
the functioning of the administrative machinery in the state as well as will pose a
threat to the lives of the citizens who want to live peacefully.

In order to maintain the public order and tranquility 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.
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This chapter encompasses a total of 21 sections which deal with the procedural
steps taken in the maintenance of public order and tranquility. These sections have
been discussed below:

Section 129 – Dispersal of assembly by use of civil force

1) Any Executive Magistrate or office in charge of a police station or, in the

absence of such officer in charge, any police officer, not below the rank of a
sub-inspector, may command any unlawful assembly, or any assembly of five
or more persons likely to cause a disturbance of the public peace, to
disperse; and it shall thereupon be the duty of the members of such
assembly to disperse accordingly.
2) If, upon being so commanded, any such assembly does not disperse, or if,
without being so commanded, it conducts itself in such a manner as to show
a determination, not to disperse, any Executive Magistrate or police officer
referred to in Sub-Section (1), may proceed to disperse such assembly by
force, and may require the assistance of any make person, not being an
officer or member of the armed forces and acting as such, for the purpose of
dispersing such assembly, and, if necessary, arresting and confining the
persons who form part of it, in order to disperse such assembly or that they
may be punished according to law.

Section 130 – Use of armed forces to disperse assembly

1) If any such assembly cannot be otherwise dispersed, and if it is necessary

for the public security that it should be dispersed, the Executive
Magistrate of the highest rank, who is present may cause it to be
dispersed by the armed forces.
2) Such Magistrate may require any officer in command of any group of
persons belonging to the armed forces to disperse the assembly with the
help of the armed forces under his command, and to arrest and confine
such persons forming part of it as the Magistrate may direct, or as it may
be necessary to arrest and confine in order to disperse the assembly or to
have them punished according to law.
3) Every such officer of the armed forces shall obey such requisition in such
manner as he thinks fit, but in so doing he shall use as little force, and do
as little injury to person and property, as may be consistent with
dispersing the assembly and arresting and detaining such persons.
Section 131 – Power of certain armed force officers to disperse assembly
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When the public security is manifestly endangered by any such assembly and no
Executive Magistrate can be communicated with, any commissioned or gazette
officer of the armed forces may disperse such assembly with the help of the armed
forces under his command, and may arrest and confine any persons forming part
of it, in order to disperse such assembly or that they may be punished according to
law, but if, while he is acting under this section, it becomes practicable for him to
communicate with an Executive Magistrate, he shall do so, and shall thenceforward
obey the instructions of the Magistrate, as to whether he shall or shall not continue
such action.
Section 132 – Protection against prosecution for acts done under preceding
sections
1. No 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:
a. with the sanction of the Central Government where such person is an officer
or member of the armed forces;
b. with the sanction of the State Government in any other case.
2-

a. No Executive Magistrate or police officer acting under any of the said

sections in good faith;
b. no person doing any act in good faith in compliance with a requisition under
section 129 or section 130;
c. no officer of the armed forces acting under section 131 in good faith;
d. no 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.

3. In this section and in the preceding sections of this Chapter,

a. the expression “armed forces” means the military, naval and air forces,
operating as land forces and includes any other Armed Forces of the Union
so operating;
b. “officer” in relation to the armed forces, means a person commissioned,
gazetted or in pay as an officer of the armed forces and includes a junior
commissioned officer, a warrant officer, a petty officer, a non-commissioned
officer and a non-gazetted officer;
c. “member” in relation to the armed forces, means a person in the armed
forces other than an officer.
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Section 133 – Conditional order for removal of nuisance

1. Whenever a District Magistrate or a Sub-divisional Magistrate or any other

Executive Magistrate specially empowered in this behalf by the State
Government on receiving the report of a police officer or other information
and on taking such evidence (if any) as he thinks fit, considers.-
a. that any unlawful obstruction or nuisance should be removed from
any public place or from any way, river or channel which is or may be
lawfully used by the public; or
b. that the conduct of any trade or occupation or the keeping of any
goods or merchandise; is injurious to the health or physical comfort of
the community, and that in consequence such trade or occupation
should be prohibited or regulated or such goods or merchandise
should be removed or the keeping thereof regulated: or
c. that the construction of any building, or the disposal of any substance,
as is likely to occasion conflagration or explosion, should be prevented
or stopped; or
d. that any building, tent or structure, or any tree is in such a condition
that it is likely to fall and thereby cause injury to persons living or
carrying on business in the neighborhood or passing by, and that in
consequence the removal, repair or support of such building, tent or
structure, or the removal or support of such tree, is necessary; or
e. that any tank, well or excavation adjacent to any such way or public
place should be fenced in such manner as to prevent danger arising to
the public; or
f. that any dangerous animal should be destroyed, confined or
otherwise disposedof, Such Magistrate may make a conditional order
requiring the person causing such obstruction or nuisance, or carrying
on such trade or occupation, or keeping any such goods or
merchandise, or owning, possessing or controlling such building, tent,
structure, substance, lank, well or excavation, or owning or possessing
such animal or tree, within a time to be fixed in the order-
i. to remove such obstruction or nuisance; or
ii. to desist from carrying on, or to remove or regulate in such
manner as may be directed, such trade or occupation, or to
remove such goods or merchandise, or to regulate the keeping
thereof in such manner as may be directed; or
iii. to prevent or stop the construction of such building, or to alter
the disposal of such substance; or
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iv. to remove, repair or support such building, tent or structure, or

to remove or support such trees; or
v. to fence such tank, well or excavation; or
vi. to destroy, confine or dispose of such dangerous animal in the
manner provided in the said order; or, if he objects so to do, to
appear before himself or some other Executive Magistrate
subordinate to him at a time and place to be fixed by the Order,
and show cause, in the manner hereinafter provided, why the
order should not be made absolute.
2. No order duly made by a Magistrate under this section shall be called in
question in any Civil Court. Explanation- A" public place" includes also
property belonging to the State, camping grounds and grounds left
unoccupied for sanitary or recreative purposes.

And further the sections 134,

134 135,
135 136,
136 137,
137 138,
138 139,
139 140,
140 141,
141 142,
142 143,
143 144,
144 144A,
144A
145,
145 146,
146 147 and 148 deal with provisions such as Service or notification of Order,
Person to whom order is addressed to obey or show cause, Consequences of his
failing to do so, Procedure where existence of public right is denied, Procedure
where he appears to show cause, Power of Magistrate to direct local investigation
and examination of an expert, Power of Magistrate to furnish written instructions,
etc., Procedure on order being made absolute and consequences of disobedience,
Injunction Pending Inquiry, Magistrate may prohibit repetition or continuance of
public nuisance, Power to issue order in urgent cases of nuisance or apprehended
danger, Power to prohibit carrying arms in procession or mass drill or mass training
with arms, Procedure where dispute concerning land or water is likely to cause
breach of peace, Power to attach subject of dispute and to appoint receiver,
Dispute concerning right of use of land or water and Local Inquiry respectively.

POWERS OF POLICE IN MAINTENANCE OF PUBLIC ORDER

The Police force in the country is entrusted with the responsibility of maintenance
of public order and prevention and detection of crimes. Each state and union
territory of India has its own separate police force. Article 246 of the Constitution of
India designates the police as a state subject, which means that the state
governments frame the rules and regulations that govern each police force. These
rules and regulations are contained in the police manuals of each state force.
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The Police force in the state is headed by the Director General of Police/Inspector
General of Police. Each State is divided into convenient territorial divisions called
ranges and each police range is under the administrative control of a Deputy
Inspector General of Police. A number of districts constitute the range. District
police is further sub-divided into police divisions, circles and police-stations.

Besides the civil police, states also maintain their own armed police and have
separate intelligence branches, crime branches, etc. Police set-up in big cities like
Delhi, Kolkata, Mumbai, Chennai, Bangalore, Hyderabad, Ahmedabad, Nagpur,
Pune, Bhubaneswar-Cuttack etc. is directly under a Commissioner of Police who
enjoys magisterial powers. All senior police posts in various states are manned by
the Indian Police Services (IPS) cadres, recruitment to which is made on all-India
basis.

The Central Government maintains Central Police forces, Intelligence Bureau

(IB), Central Bureau of Investigation (CBI) , institutions for training of police officers
and forensic science institutions to assist the state in gathering intelligence, in
maintaining law and order, in investigating special crime cases and in providing
training to the senior police officers of the state governments.

Provisions under Police Act, 1861

Section 30 of the Police Act, 1861 states that:

(1) The District Superintendent or Assistant District Superintendent of Police may,

as occasion requires, direct the conduct of all assemblies and processions on the
public roads, or in the public streets or thoroughfares, and prescribe the routes by
which, and the times at which, such processions may pass.

(2) He may also, on being satisfied that it is intended by any persons or class of
persons to convene or collect an assembly in any such road, street or thoroughfare,
or to form a procession which would, in the judgment of the Magistrate of the
district, or of the sub-division of a district, if uncontrolled, be likely to cause a
breach of the peace, require by general or special notice that the persons
convening or collecting such assembly or directing or promoting such procession
shall apply for a license.

(3) On such application being made, he may issue a license specifying the names of
the licensees and defining the conditions on which alone such assembly or such
procession is to be permitted to take place and otherwise giving effect to this
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section: Provided that no fee shall be charged on the application for, or grant of,
any such license.

Section 30A further states that,

(1) Any Magistrate or District Superintendent of Police or Assistant District

Superintendent of Police or Inspector of Police or any police officer in charge of a
station may stop any procession which violates the conditions of a license granted
under the last foregoing section, and may order it or any assembly which violates
any such conditions as aforesaid to disperse.

(2) Any procession or assembly which neglects or refuses to obey any order given
under the last preceding sub-section shall be deemed to be an unlawful assembly.

Section 31 with the title ‘Police to keep Order in Public Roads’ states that:

It shall be the duty of the police to keep order on the public roads, and in the public
streets, thoroughfares, ghats and landing-places, and at all other places of public
resort, and to prevent obstructions on the occasions of assemblies and processions
on the public roads and in the public streets, or in the neighbourhood of places of
worship, during the time of public worship, and in any case when any road, street,
thoroughfare, ghat or landing-place may be thronged or may be liable to be
obstructed.

Section 32 says that Every person opposing or not obeying the orders issued under
the last three preceding sections, or violating the conditions of any license granted
by the District Superintendent or Assistant District Superintendent of Police for the
use of music, or for the conduct of assemblies and processions, shall be liable, on
conviction before a Magistrate, to a fine not exceeding two hundred taka.1

These above mentioned sections are very significant in regards to the maintenance
of Public Order.
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CONSTITUTIONAL VALIDITY OF POLICE POWERS

It is often seen that the legal provisions sometimes are at loggerheads with each
other. For example, at times we have seen that the articles of the Constitution of
India prima facie seem contrary to the other provisions and so in these
circumstances the apex court i.e. the Supreme Court of India intervenes in the
matter and provides a clear guideline. It is almost unexpected that a law will
absolutely not be in contradiction with another existing law which means that there
are plenty of scenarios where one can easily observe the fact that if any law has
been made then it has been framed after rounds of discussions and given the fact
that it may be violative any other law or rule, it is made justifiable with proper
reasoning and rationale.

The Powers of the Administration in the maintenance of the public order and
tranquility have been specifically mentioned in both Cr.PC and the Police Act,
1861(Powers of the Police). However the conflicts related to these provisions have
also been witnessed in the past. At times some of the provisions have gained
currency immensely because of the controversies surrounding them. The history
has witnessed some of those cases too where the provisions of the Code of
Criminal Procedure have been challenged on the grounds of being
“unconstitutional”. These matters were latter settled with the intervention of the
Supreme Court.

One of the famous cases where the Constitutional Validity of the Section 144 was
challenged is Babul al Parate v state of Maharashtra AIR 1961 SC 884

Facts:

The Rashtriya Mill Majdoor Sangh (RMS), a trade union in Nagpur entered into an
agreement with the management of the Empress Mills regarding the closure of a
Mill for re-building it and regarding the employment of workers who were
employed therein in a third shift. This agreement was opposed by another trade
union, the Nagpur Mill Majdoor Sangh (NMS). On January 25, 1956, a group of
workers belonging to the NMS took out a procession in the locality where the office
of RMS was located. It was said that a scuffle took place there between the
members of both the unions. An offence under section 452 read with section 147,
IPC was registered by the police on January 27, 1956. Thereafter, the members of
NMS took out a procession shouting slogans which, according to the District
Magistrate, were provocative. On the same night a meeting of NMS was held in
which it was alleged that the workers were instigated by the speakers to
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offer satyagraha in front of the Empress Mill and also to take out a procession to
the office of the RMS. On January 28, 1956, the workers belonging to NMS
assembled in large numbers blocking the traffic on the road. The District Magistrate
passed an order at 4:00 a.m. on January 29, 1956, which came into force
immediately and was to remain in force for a period of fifteen days
prohibiting, inter alia , the assembly of five or more persons in certain areas
specified in the order.2

The petitioner held a public meeting outside the area covered by the aforesaid
order. It is alleged that at that meeting he criticized the District Magistrate and
exhorted the workers to contravene his order and take out processions in the area
covered by the order. Thereupon he was arrested by the police for having
committed the offences already referred to and produced before a Magistrate. The
Magistrate remanded him to jail custody till February 15, 1956. The petitioner's
application for bail was rejected on the ground that the accusation against him
related to a non-bailable offence. Thereupon the petitioner moved the High Court
at Nagpur for his release on bail but his application was rejected on February 22,
1956. The petitioner then presented a petition before the High Court under section
491 of the Code of Criminal Procedure for a writ of habeas corpus. That petition
was dismissed by the High Court on May 9, 1956. The petitioner then moved the
High Court for granting a certificate under Article 132 of the Constitution.3

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

Issues:

1. Whether section 144, CrPC in-so far as it relates to placing of restrictions on

freedom of speech and freedom of assembly and confers very wide powers on the
District Magistrate and certain other Magistrates, places unreasonable restrictions
on the rights guaranteed under Article 19(1)(a) and (b) of the Constitution?
19

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

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

Judgment: The power conferred by section 144 of CrPC can be exercised only in an
emergency and for the purpose of preventing obstruction, annoyance or injury to
any person lawfully employed, or danger to human life, health or safety, or a
disturbance of the public tranquility or a riot, or an affray. These factors condition
the exercise of the power and it would consequently be wrong to regard that power
as being unlimited or untrammelled. Further, it should be borne in mind that no
one has a right to cause obstruction, annoyance or injury etc. to anyone. Since the
judgment has to be of a Magistrate as to whether in the particular circumstances of
a case an order, in exercise of these powers, should be made or not, we are entitled
to assume that the powers will be exercised legitimately and honestly. The section
cannot be struck down on the ground that the Magistrate may possibly abuse his
powers.4

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

It is the fundamental duty of the State to maintain public order. The definition of
public order is given in section 31 of the Police Act of 1861 and requires that order
will be maintained on public roads and in public places, obstruction will not be
caused by assemblies and processions and, when this is read with section 34 which
make it an offence for any person to cause obstruction, inconvenience, annoyance,
risk, danger or damage and section 23, which makes it incumbent upon the police
to maintain the public peace and prevent the commission of offence and of public
nuisance, it is clear that public order really means that the actions of a group of
individuals should not impinge on the rights and convenience of any other group.
An assembly of persons who use criminal force in order to cause a public servant to
desist from his duty, resist the execution of any law or legal process, commit
mischief or criminal trespass, deprive any other person of his property, enjoyment
of a right of way or peaceful enjoyment of rights by use of criminal force, or use
criminal force to compel a person to do an illegal act automatically becomes an
unlawful assembly under section 141 of the IPC if it consists of five or more
persons. For the purpose of maintenance of public order and tranquility an
Executive Magistrate or a police officer is empowered under Chapter X CrPCto
cause the assembly to disperse, if need be by use of civil force or with the help of
the armed forces. Every act of disturbance of public order is a cognizable offence,
to prevent which a police officer may arrest the accused under section 151 Cr.P.C.
Under Chapter VIII CrP.C. such persons can be bound over for keeping the peace,
be of good behaviour and generally behave in a lawful and orderly manner. The
duty of the Executive Magistracy and the Police to maintain public order is thus
clearly laid down by law.
21

BIBLIOGRAPHY
BIBLIOGRAPHY

Statutes:

Constitution of India, 1950

Code of Criminal Procedure, 1973

The Police Act, 1861

Web Sources:

1. www.legalservicesindia.com
2. http://lawyersupdate.co.in
3. http://www.the-laws.com/Encyclopedia/
4. https://indiankanoon.org/doc/749305/