Md. Gulam Abbas & Ors vs Md. Ibrahim & Ors

Supreme Court16 December 1977M. Hameedullah Beg · P.N. Bhagwati · Jaswant Singh

SCC(1978) 1 SCC 226
Neutral1977 INSC 240
AIRAIR 1978 SC 422
SCR[1978] 2 SCR 419

Ratio decidendi

The rule this decision rests on

1. Section 144 of the Criminal Procedure Code confers jurisdiction on a magistrate to direct any person to abstain from a certain act or to take certain order with certain property in his possession or under his management, with the object of preventing disturbance of public tranquility, riot, affray, or dangers to life, health, safety or peace. 2. Orders under Section 144(3) are intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public, and are temporary orders that cannot last beyond two months; they may be directed to a particular individual or to the public generally when frequenting or visiting a particular place. 3. A person may be prevented from doing something even upon his own property, provided that the doing of a perfectly legal act constitutes a danger to human life, health or safety of others or to public peace and tranquility. 4. Questions of title cannot be decided for the first time either in a writ petition or in a proceeding under Section 144 of the Criminal Procedure Code; the remedy for such questions lies by way of a civil suit for an injunction, though previous judgments on title may have a bearing on what order should be passed under Section 144. 5. The magistrate is not concerned with individual rights in performing his duty under Section 144 but must determine what may be reasonably necessary or expedient in a situation of which he is the best judge; no hard and fast rules can be laid down for guidance in exercising this power, as decisions must necessarily be governed by the existing situation in each case, judged on facts and circumstances existing at a particular place at a particular time.

Written by Miss Lucy from the judgment below, not taken from a headnote.

Judgment

As delivered

CIVIL APPELLATE JURISDICTION : Review Petition No. 36 of1977. Application for review of this Court's Judgment dated6th of De76.INCivil Appeal No. 941-A of 1976A. K. Sen, M. C. Bhandare, (Mrs.) Urimila Kapoor, (Miss).Kamlesh Bansal and (Mrs.) Shobha Dikshit for thePetitioners.420Bashir Ahmed, K. L. Hathi and P. C. Kapoor for theRespondents.The Order of the Court was delivered byBEG, CJ.-This review application seems quite unnecessary.Since, however, learned Counsel for the petitioners haveearnestly tried to impress upon us that, unless we mentionedthe correct principles on which jurisdiction is to beexercised under Section 144 of the Criminal Procedure Codeby Magistrates, they may continue to exercise them on wrongprinciples, we may clear up these possibly imaginarydifficulties. We find it hard to believe that Magistrateswill deliberately shut their eyes to the requirements of lawas laid down clearly in Section 144, Cr. P.C., but, as whatis not easily conceivable sometimes does happen, we willexplain the provisions of Section 144 Criminal ProcedureCode a little.This-provision confers a jurisdiction to "direct any personto abstain from a certain act or to take certain order withcertain property in his possession or under his management"with the object, inter alla, of preventing "a disturbance ofthe public tranqunity, or a riot, or an affray". Section144(3) specifically lays down that the order under thisSection "may be, directed to a particular individual or tothe public generally when frequenting or visiting aparticular place". The kind of orders mentioned here areobviously intended only to prevent dangers to life, health,safety or peace and tranquility of members of the public.They are only temporary orders which cannot last beyond twomonths from the making thereof as is clear from Section144(6) of the Code. Questions of title cannot be, decidedhere at all. But, previous judgments on them may have a'bearing on the question whether, and, if so, what ordershould be, passed under Section 144 Criminal Procedure Code.It may sometimes happen that a person may be prevented fromdoing something even upon his own property provided thedoing of a perfectly legal act constitutes a danger to humanlife, health, or safety of others or to public peace andtranquility. An example of this can be shouting ofprovocative slogans from one's own house top. Nevertheless,it is the duty of the authorities to aid and protect thosewho are performing completely legal acts in a reasonable andperfectly legal manner or in accordance with what the lawpermits them to do. It is only where it is not practicableto allow them to do something which is quite legal, havingregard to the state of excited feelings of persons living inan area or frequenting a locality, that any action may betaken under Section 144 Criminal Procedure Code which mayinterfere with what are, otherwise, completely legal andpermissible conduct and speech.It was asserted on behalf of the petitioners that in arepresentative suit between Shia and Sunni sects of Muslimsquestion of title to properties or places to whichMagistrate's orders under Section 144 Criminal ProcedureCode related has already been decided. If that be so. wehave no doubt that the Magistrate will respect that decisionin making an order under Section 144 Cr. P.C. in thefuture, Then it would be easier for the Magistrate to seewho should be allowed to exercise-

421 the legitimate right of holding a meeting on or occupying a particular property or doing anything else, there. It may however be noted that the Magistrate is not concerned with individual rights in performing his duty under Section 144 but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. If any community or sect is disposed to transgress the rights of another in a particular property habitually, the remedy lies by way of a civil suit for an injunction. Both sides before us make conflicting assertions on such questions. It is impossible to decide them for the first time either in a writ petition or in a proceeding under Section 144 of the Criminal Procedure Code. If public peace and tranquili ty or other objects mentioned there are not in danger the Magistrate concerned cannot act under Section

144. He could only direct parties to go to the proper forum. On the other hand, if the public safety, peace, or tranquility are, in danger, it is left to the Magistrate concerned to take proper action under Section 144 Criminal Procedure Code. No hard and fast rule-, can be laid down for guidance in exercising a power on which decisions must necessarily be governed by the existing situation in each case. It has to be judged on facts and circumstances existing at a particular place at a particular time. We have no doubt that, particularly after this brief and obvious explanation of the provisions of Section 144 Criminal Procedure Code, no orders will be passed contrary to that the section itself so clearly requires as conditions precedent to the passing of an order. We are not convinced at all that the applicants had any real ground for seeking a review of our orders. Consequently, we dismiss this application. We, however, make no orders as to costs.

S.C R. Review Petition dismissed. 422

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