‘Exercise powers in conformity with SC’s directives’
Repetitive orders abuse of power: Apex Court
Mohinder Verma
JAMMU, Jan 29: In a significant development, the Home Department has directed the District Magistrates of Union Territory of Jammu and Kashmir to immediately review all the existing orders passed under Section 144 of Code of Criminal Procedure (CrPC) to assess the need for their continuance.
Moreover, they have been asked to ensure strict compliance to the recent directions and the principles laid down by the Supreme Court on the maintenance of public order and tranquillity.
The provisions relating to issuance of orders by the District Magistrates or any other Magistrate so authorized are contained in Chapter X-“Maintenance of Public Order and Tranquillity” of the Code of Criminal Procedure (CrPC), 1973.
The power to take preventive measures to deal with the imminent threats to public peace in urgent cases of nuisance or apprehended danger is contained in Section 144 of the CrPC, which empowers the Magistrate(s) to issue a mandatory order requiring certain actions to be undertaken or a prohibitory order restraining citizens from doing certain things.
The Supreme Court in a Writ Petition No.1031 of 2019 against Union of India and Others laid emphasis on the statutory obligation cast upon the Magistrate(s) to adhere to the procedural requirements of Section 144 CrPC.
Moreover, the Apex Court has directed the J&K authorities to publish all orders in force and any future orders under Section 144 CrPC and for suspension of telecom services including internet to enable the affected persons to challenge it before the High Court or appropriate forum.
“The power under Section 144 CrPC being remedial as well as preventive is exercisable not only where there exists present danger but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an emergency and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed”, the Supreme Court said in the judgment.
The Apex Court has made it clear that the power under Section 144 CrPC cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights. “An order passed under Section 144 CrPC should state the material facts to enable judicial review of the same. Moreover, the power should be exercised in a bonafide and reasonable manner and the same should be passed by relying on the material facts, indicative of application of mind”, the Supreme Court said.
Stating that repetitive orders under Section 144 CrPC would be an abuse of power, the Apex Court further said, “while exercising the power under Section 144 CrPC the Magistrate is duty bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure”.
In compliance to these directives of the Supreme Court, the Principal Secretary to Government, Home Department Shaleen Kabra has directed all the Magistrates to ensure that all the orders in force and any future orders under Section 144 CrPC are duly published.
“A review of all the existing orders passed under Section 144 CrPC shall be undertaken forthwith to assess the need for their continuance or otherwise in accordance with the law laid down by the Supreme Court recently”, the Home Secretary said, adding “the orders under Section 144 CrPC as and when issued should be in conformity with the directions and the principles laid down by the Supreme Court”.
He has further ordered that all the Magistrates empowered in this behalf shall also ensure that the copies of the orders issued under Section 144 CrPC be sent through all modes of communication including on official e-mail of the Home Department and also to the concerned Divisional Commissioner on the same day for their information.
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