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Urgent Cases of public Nuisance

Subject: Code of Criminal Procedure

Taught By: Ms. Soma Bhattacharya

Made By: K.S.Manaswi

2016045

Harshit Malviya

2016039

TITLE : Urgent Cases of Public Nuisance
RESEARCH QUESTION: Whether the powers conferred under Section 144 can be arbitrary in
nature?

HYPOTHESIS: The section 144 of the criminal procedure code is not arbitrary in nature as it
exercised for the public peace and tranquility

OBJECTIVE OF THE STUDY: To study the urgency and emergent cases of the public
nuisance and the use of the sections 134 and 144 to remove the apprehension of danger.

RESEARCH METHODOLOGY: The paper shall have doctrinal research with books, journals,
newspapers being the primary sources of information.

SCOPE OF THE STUDY: The paper shall be limited to the ILO standards of work, human
rights instruments and workers benefits vis a vis armed forces and its comparative analysis with
those in 3 countries.

SIGNIFICANCE OF THE STUDY: The paper shall help the reader in understanding the
differences and indifferences in the Indian scenario and the application the Criminal Procedure
Code.

CONTENTS/ CHAPTERS:

I. Introduction.
II. Scope of Sectoin 144 of Criminal Procedure Code
III. Rationale for the application of 144
IV. Constitutional Validity of this Section
V. Condition precedent to assuming jurisdiction
VI. Contents of Order
VII. Conclusion

Acknowledgement This project has been made under the guidance of the faculty. Ms Soma Bhattacharya. It was a wonderful opportunity to have got the topic of human trafficking and research on the same. .

Section 144 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. but also due to factors that the orders so issued did not specifically mention the area on which the restriction are imposed and so on. However. details of an order under this section are elaborated upon. the judicial pronouncement as dealt with in the paper. 134 of the Criminal Procedure Code. in many cases the orders issued under the provision may be struck down not squarely on the grounds that such orders were not warranted by the circumstances. whether in a specific locality or in a town itself. The Courts have therefore laid much emphasis on the importance of following guidelines mentioned under section 134 as also in the various sub-section of section 144. like its contents. due to certain disputes. as the case law discussed would indicate. In brief. The wording of the section envisages a situation wherein the power provided there under may be exercised on the assessment of the Magistrate himself . aptly show that certain stringent conditions have been imposed by the Courts on this most plenary powers. judicial pronouncements have been relied upon to substantiate as well as elucidate the meaning of the section. The project will begin with analysis by first expounding on the scope of section 144. While explaining the above. Therefore. It requires the magistrate to issue the order in writing setting forth the material facts of the case and the order is to be served in the manner provided by section. where the situation has the potential to cause unrest or danger to peace and tranquility in such an area. duration and mode of its service. .a subjective satisfaction. Further in the project. not only would the Court consider the situations as assessed by the Magistrate but would also take into cognizance factors as to whether the orders issued under section 144 were vague or directed to a specific person. Therefore. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable.Abstract: Under the Criminal Procedure Code (hereinafter the Code) wide powers have been conferred on an Executive Magistrate to deal with emergent situations. followed by the explanations regarding the conditions that need be fulfilled in order to invoke it. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals.

Volume 1 Articles  Public Nuisance in India.Literature Review Books  Ratanlal and Dhirajlal. Elizabeth Brundige. Int'l L. The code of Criminal Procedure. KarimaBennoune.A way to curb. The Code of Criminal Procedure. The Code of Criminal Procedure. Volume 1. Rev. 2017  Sarkar. 353 (2014)  Nuisance. & Pol'y 9 (2007) . ed 22. 2016  Mulla. Martina Vandenberg. Lori Nessel. ed 19. ed 11. J. 36 Denv. 4 UC Irvine L.

................................................................................................................................................................................................. 23 Bibliography ............................................................................................... 9 Rationale for the application of Section 144...................................................................................... 16 Contents of order.......................................................... 23 Conclusion ........... 3 Abstract: ............... 22 INJUNCTION PENDING INQUIRY ................................. 20 PROCEDURE WHERE HE APPEARS TO SHOW CAUSE ................................................................................................................................... 4 INTRODCUTION: .......................... 20 PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED ........................................................................... 25 ....... 17 Service of the prohibiting order under section 144 ................................................................................................................................Contents Acknowledgement ................................................................................................................................................................................................................................................................................................................................................................ 19 Service or notification of order ............................................................................................... 14 Condition precedent to assuming jurisdiction................................................... 20 Person to obey the order or to show cause .............................................................................................. 12 Constitutional Validity of this section ............................................................................................................................. 8 Scope of Section 144 of the Criminal Procedure Code ..... 21 PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE . 21 LOCAL INVESTIGATION AND EXPERT EVIDENCE................................................................... 22 MAGISTRATE MAY PROHIBIT REPETITION OR CONTINUANCE OF PUBLIC NUISANCE ...................................................................................................................................................................................... 18 Duration of the Order ...............................................................................................................

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Therefore. Code of Criminal Procedure.a subjective satisfaction. details of an order under this section are elaborated upon. The wording of the section envisages a situation wherein the power provided there under may be exercised on the assessment of the Magistrate himself . aptly show that certain stringent conditions have been imposed by the Courts on this most plenary powers. the judicial pronouncement as dealt with in the paper. 1973 . The Courts have therefore laid much emphasis on the importance of following guidelines mentioned under section 134 as also in the various sub- section of section 144. In brief. not only would the Court consider the situations as assessed by the Magistrate but would also take into cognizance factors as to whether the orders issued under section 144 were vague or directed to a specific person. However. 1973 2 Section 134.INTRODCUTION: Under the Criminal Procedure Code (hereinafter the Code) wide powers have been conferred on an Executive Magistrate to deal with emergent situations. but also due to factors that the orders so issued did not specifically mention the area on which the restriction are imposed and so on. due to certain disputes. Further in the paper. in many cases the orders issued under the provision may be struck down not squarely on the grounds that such orders were not warranted by the circumstances. as the case law discussed would indicate. One such provision deals with the Magistrates powers to impose restrictions on the personal liberties of individuals. It requires the magistrate to issue the order in writing setting forth the material facts of the case and the order is to be served in the manner provided by section 1342 of the Criminal Procedure Code. Section 1441 confers powers to issue an order absolute at once in urgent cases of nuisance or apprehended danger. Specified classes of magistrates may make such orders when in their opinion there is sufficient ground for proceeding under the section and immediate prevention or speedy remedy is desirable. followed by the explanations regarding the conditions that need be fulfilled in order to invoke it. where the situation has the potential to cause unrest or danger to peace and tranquility in such an area. Code of Criminal Procedure. 1 Section 144. like its contents. Therefore. whether in a specific locality or in a town itself. The paper begins its analysis by first expounding on the scope of section 144.

" 3 Radhe Das v Jairam Mahto. In the words of: "To give jurisdiction under this section. While explaining the above. The court held that if the situation demands any action. that is. judicial pronouncements have been relied upon to substantiate as well as elucidate the meaning of the section.144 is the urgency of the situation. The gist of action under S. The petitioners applied for restriction on the respondent from entering the property. while the judicial proceedings were in way the respondents too claimed for the same prohibition on the petitioners. it is utilized to restrict certain actions even before they actually occur. which was subsequently granted by the Magistrate under the same section. which was ordered by the Magistrate under Section 144. In such circumstances private rights must give way. duration and mode of its service. the Magistrate shall be of opinion that immediate prevention or speedy remedy is desirable and that the direction he proposes to make is likely to prevent a disturbance of the public tranquility or a riot or an affray. The respondents in response to this order brought the present action on the ground that their right over the property was being violated by the order. where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility. the individual rights of a person can be renounced for the greater benefit of the society at large. Anticipatory restrictions are imposed generally in cases of emergency. However. In the case of Radhe Das v Jairam Mahto3 the dispute was over a piece of property. 123 Ind Cas 73 . Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the Executive Magistracy enabling it to perform that function effectively during the emergent situations. Scope of Section 144 of the Criminal Procedure Code Action under this section is anticipatory. its efficacy is the likelihood of being able to prevent some harmful occurrences. then for prevention of public peace and tranquility.

4 Manzur Hasan v Muhammad Zaman. It confers full powers on certain Magistrates to take prompt action in cases of emergency when immediate prevention or speedy remedy is desirable. The Magistrate should apply his mind to see whether the matter is of such urgency as to require an order under this section. The consideration should not be that restriction would affect only a minor section of the community rather that a large section more vociferous and militant. (1921) ILR 43 All 692 5 Shaik Piru Bux v Kalandi Pati. 4. Urgency of the situation and the power is to be used for maintaining public peace and tranquility 2. The principles that must be borne in mind before the application of this section has also been elaborated upon in the case of Manzur Hasan v Muhammad Zaman4 and approved in the case of Shaik Piru Bux v Kalandi Pati5. If there is neither an urgency calling for the application of a speedy remedy nor apprehension of danger to human life. 1970 AIR 1885 . 5. etc. the Magistrate should exercise their power under section 144 in aid of those rights and against those who interfere with the lawful exercise thereof. the Magistrate cannot issue an order under this section.. Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a proceeding under section 144. Without it the exercise of power would be totally futile. They are: 1. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Where those questions have already been decided by the civil courts or by judicial pronouncements. Private rights may be temporarily overridden when there is a conflict between public interest and private rights 3. health or safety.

The mere statement of a Magistrate that he considered the case to be imminent is not sufficient to give him jurisdiction. This right cannot be curtailed so long as it is exercised in a lawful manner.Though the power conferred under this section is extraordinary considering the fact that it enables them to suspend the lawful rights of persons if they think such a suspension will be in the interest of public peace and safety. which was objected to a large number of Muslims. It is an illegal assumption of power to issue an order under this section on a pretended apprehension of the danger of the breach of the public peace. This was held in the case of Acharya Jagdisharanand . The petitioner in this case was stated to be the greatest Pir of Sind. if the facts set out by him show that really there was no urgent necessity for action in this connection. Another point that needs consideration is that an order under section 144 cannot be of a permanent or a semi-permanent nature. But the Magistrate should bear in mind that every citizen has a right to ventilate his grievances either in public or in private and ask for redress. and it is idle to contend that in an emergency. the Magistrate is required to deliberate upon and decide the rights of the parties before acting. and held an annual religious festival. However. and it is idle to contend that in an emergency when a riot is apprehended and when there is apprehension of a serious disturbance of the public tranquillity. The Court disagreed with this contention and answered the argument through the following reasoning: "this section is intended to provide for an emergency. This order was objected by the pir and his followers as it curtailed their rights to worship. when a riot is apprehended and where there is apprehension of a serious disturbance of the public tranquility the Magistrate is required to deliberate upon and decide the rights of the parties before acting. Considering the situation the DM of the state by an order under section 144 prohibited the celebration of this 'festival'." The order must state the facts on the basis of which the Magistrate has decided to invoke this section. section 144 is intended to provide for an emergency.

This section covers both kinds of annoyance. If repetitive orders are made it would clearly amount to abuse of the power conferred by section 144 of the Code. Even where an order under this section deals with a 'nuisance' there must be a danger to life or health involved. and 6 Acharya Jagdisharanand Avadhut v Police Commissioner. In the case of physical annoyance a certain degree of proximity between the object annoyed and the annoyance is necessary." Rationale for the application of Section 144 Orders under this section are justifiable only when it is likely to prevent any of the following events from happening 1. Section 144 Criminal Procedure Code. This repetition of order was challenged. Calcutta. The Supreme Court held this act of the Commissioner as an abuse of power and stated on page 58 that: "the Parliament never intended the life on an order under section 144 of the code to remain in force beyond two months when made by a Magistrate. Avadhut v Police Commissioner. Mere defamatory statements. by an order of the Commissioner under section 144 of the code. The first order lasted for two months and then after every gap of two months the Commissioner again issued the same order. The scheme of that section does not contemplate repetitive orders and in case the situation so warrants steps have to be taken under other provisions of the law when individual disputes are raised. Calcutta6 where the Anand Margis were prohibited from conducting Tandava dance on the streets or carry skulls in their processions. dangerous to life or health or to annoy officers lawfully employed. can be used even against newspapers in proper cases of incitements to breaches of the peace or to commit nuisances. or of an affray or riot or breach of the peace. but in the case of mental annoyance no question of proximity arises. 1984 SCR (1) 447 . Annoyance: Annoyance may be either physical or mental.

Injury to Human life: A Magistrate has no jurisdiction to make an order under this section merely for the protection of property. Where there are no circumstances peculiar to the locality and the matter is or of general impression. So. Whenever. it is possible to establish a connection of cause and effect between the act prohibited and disturbance of public tranquility. But there is at least one item about which this limited view is not possible.. . and the word 'illegal' defined under section 43 of then same Code is applicable to 'everything which is prohibited by law. Disturbance of public tranquility: The act prohibited under this section must he so prohibited if it is likely to prevent obstructions. or which furnishes a ground for a civil action'. Most of the acts contemplated by this section are of the nature that if not prevented they will develop into an offence. etc. even if the act or the measure complained of be not such as would amount to an offence when allowed to be completed would furnish grounds for a civil action only. an injury is caused to a person the recourse to this section can be taken in those situations. reputation or property'. the protection of this section will extend to the person. it is not enough to say that by stretching several possibilities one after the other. The word 'injury' as defined under section 44 of the IPC states 'any harm whatever illegally caused to any person. or disturbance of the public tranquility. 2. etc. The connection must be reasonable or proximate and not merely speculative or distant. mind. He has got to be satisfied that the direction is likely to prevent injury or risk of injury to human life or safety. The section should not be abused by using it for dealing with abusive articles and defamation not likely to lead to a breach of peace.even highly objectionable abusive articles against prominent officials. cannot be dealt with under this section unless they are likely to lead to a breach of the peace or to a nuisance endangering life or health. 3. the absence of any near or reasonable connection between the prohibited act and the supposed danger to public tranquility will be a ground upon which the High Court is bound to act. in body.

the Magistrate gave a prohibitive order under section 144 in order to avoid a scuffle between members of two labour unions. which justified the constitutionality of section 144. The petitioner here challenged the provision as giving arbitrary powers to the Magistrate. Constitutional Validity of this section Hidayutallah. Since the propriety of the order is open to challenge.M. And the provisions of the Code properly understood are not in excess of the limits laid down in the Constitution for restricting the freedom guaranteed in it and that is precisely why the Court held that section 144 of the Criminal Procedure Code is valid and Constitutional. The conferment of such wide powers on the Magistrate does not therefore amount to an infringement of the rights guaranteed under the Constitution. There were a number of contentions raised by the counsel of the petitioner however. Monghyr. They are as follows 7 Madhu Likaye v S.D. the Supreme Court demolished each of them one by one. Just because there is a chance of abuse does not mean that the section should be struck down. But the section is not to be invoked by one party to a dispute to secure a material advantage over the other. stated in the celebrated case of Madhu Likaye v S. and imminent danger to the public peace may justify interference with even private interests. Monghyr 7. J. There were five points enumerated in the judgement. therefore it in a way restricts that act of the Magistrate. 1971 AIR 2486 . In this case. it places unreasonable restrictions on certain fundamental rights. C. 4.M. it cannot be said that by reason of the wide amplitude of the power which section 144 confers on certain magistrates. that section 144 of the Criminal Procedure Code is not unconstitutional if properly applied and the fact that it may be abused is no ground for it's being struck down.D.. Order cannot be made to give advantage to one party: The section does give wide powers to the Magistrate. For calling the power not as arbitrary the court said that as this power can only be exercised in cases of emergency.

Therefore. the persons aggrieved by the order have a right to challenge the order on the grounds they find appropriate. Only in cases of extreme critical situations that the Magistrate has to resort to passing an ex-parte order. cannot be considered reasonable. therefore ensuring accountability of the Magistrate. One of the tests to find out whether a restriction is reasonable or not is to see whether the aggrieved party has a right of representation against the restrictions imposed or proposed to be imposed. 4) Next the court also stated that the fact that the aggrieved party has the right to challenge the propriety of the order. which is opposed to the fundamental principles of liberty and justice. . This supports the view that the power granted under this section is not arbitrary. No person can be deprived of his liberty without being afforded an opportunity to be heard in defence and that opportunity must be adequate.1) Although the Magistrate has a power under this section to pass orders ex-parte¸ however generally the procedure that is followed is to serve a notice to the person against whom the order is being passed.. an opportunity for hearing and to show cause is also provided to the person challenging the order of the Magistrate. 5) Finally the High Court's power of revision under section 435 of the Code read with section 439 of the code also makes up for the condition that the order under section 144 is non- appeal able. any restriction. 2) Additionally. the courts have to see whether the restrictions are in excess of the requirement or whether it is imposed in an arbitrary manner. 3) To substantiate the above. The High Court can either quash the order or ask the Magistrate for the material facts. makes the action of the Magistrate more reasonable and based on cogent reason. fair and reasonable. Further. Additionally. the principles of natural justice are also complied with under this section. Since the decision of the Supreme Court in the case mentioned above there has been a number of cases where the courts have accepted this approach and held that the preventive action under section 144 is justified.

The circumstances calling for an order must be circumstances of emergency. and an order passed when there is no emergency is without jurisdiction. it is only necessary that the Magistrate issuing the order should believe that apprehension of nuisance or danger exists. This section is to be applied in cases of urgency and should not be allowed to take place of any other provision of law which might be more appropriate. is one which is likely to prevent or tends to prevent obstructions. The record of the Magistrate should disclose the existence of an emergency which called for an . For the purposes of section 144. and the orders to be passed under this section must be of a temporary nature as is shown clearly by sub-section (4) of section 144 providing that no order under this section shall remain in force for more than two months from the making thereof. the State Government by notification in the Official Gazette otherwise directs. or a likelihood of a riot or an affray. and the second element which has got to be established is that the Magistrate should consider that the direction which he is about to give. The urgency of a case of nuisance or apprehended danger is essential to its treatment under section 144 of the Code. in cases of danger to human life. health or safety of a disturbance of the public tranquility or a riot or an affray. And before proceeding under this section. health or safety.Condition precedent to assuming jurisdiction The first thing which a Magistrate has got be satisfied about is that there is sufficient ground for proceeding under this section and an immediate prevention or speedy remedy is desirable . annoyance or injury to any person lawfully employed. Where this essential preliminary to assuming jurisdiction is not found to exist. the Magistrate should hold an enquiry and record the urgency of the matter. his order must be deemed to be an order having no legal force and any expression of opinion contained therein must be deemed to be void of legal force or effect. unless. No proof of existence of such apprehension is necessary. The Magistrate must decide as a matter of fact whether the dispute is likely to lead to a breach of the peace or a disturbance of public tranquility. or danger to human life.

However. I. If there is no written order. In the absence of such evidence. which is absolute and definite in terms. Section 144 (1) and (2). as the person(s) to whom this order is issued must know exactly what is that he is prohibited from undertaking. Contents of order (a) Order must be in writing . 1856 . The proper use to be made of this section is to meet a temporary urgency or keep things in Status Quo and not to pass an order which has practically the effect of a mandatory injunction in favour of one of two opposing parties whereby he is able to deprive the other completely of his ordinary legal rights and remedies and that too finally for all practical purposes.C8.The order under this section must be one. it is not mandatory for the Magistrate to take evidence before issuing such an order. or persons affected by it. a prosecution under section 188.. to know exactly what it is which they are prohibited from doing. do not contemplate the passing of a conditional order to be made absolute later on or one that is pregnant with vagueness. An order under this section must be based upon proper evidence. Indian penal Code. (b) Order must be specific and definite in terms .P. It is vital for the Magistrate to 8 Section 188. for the disobedience of a mere verbal order cannot stand. There must be a written order directed to the accused and duly promulgated before he can be prosecuted for disobedience of the order. the Magistrate cannot pass an order merely on the complaint of one party. This is imperative. it is necessary that he should promulgate his order in terms sufficiently clear to enable the public.The words used under section 144 is "a written order" and therefore the order issued under this section must always be in writing. As this section empowers a Magistrate to interfere materially with the liberty of the subject. It is for this reason that section 144 itself makes it obligatory for the Magistrate in any such order to indicate the material facts. ex parte order under this section or that there was no sufficient time to serve notice on the party affected thereby. which justify such an order.

the persons against whom the orders are directed must be specified. it becomes extremely difficult for enforcement. which frequents public or private streets in a particular city. firstly 'the act/conduct which is prohibited' and secondly 'the people who are prohibited from doing so'. there must be a causal connection between the act prohibited and the danger apprehended. it was set aside. If the order is not definite and clear. if an order were directed to the public. Service of the prohibiting order under section 144 In this section of the paper. 1973 . Once the form of the order is proper. mention the following in the order under section 144. They are. and what are they prohibited from doing or required to do. The order must state as to against whom the prohibition order applies. To justify an order under section 1549. It must however be cautioned that the duration of the order must be co-extensive with the emergency. Where the order does not show that there is any emergency for which the order has been issued. the order cannot be sustained. Code of Criminal Procedure. the Magistrate must then serve the order upon 9 Section 154. which is prohibited. Except where the order is addressed to the public in general (as under sub-section 3). such an order would be considered to be sufficiently definite as to place. (c) 'Material Facts' must be stated in the order . The provision of section 144 only require the 'material facts' to be stated and not the grounds or reasons or the detailed substance of the information on which the order is based. which the magistrate considers to be facts of the case and upon the footing of which he bases his order. (d) Prohibition must be clearly stated . and hence cannot be held to be vague. The order should have names of specific persons and the prohibited act should be explained with reasonable precision. It is not proper to leave in doubt as to whether the persons are prohibited from doing a thing or not.The order must contain a statement of the 'material facts'. Where the order did not state the material facts. we would deal with the next stage of orders issued under section 144. Ambiguity of any kind should be avoided as much as possible. Thus for example. must be clearly stated.The thing.

The person can then not be convicted for any defiance of the order under section 188 of the Criminal Procedure Code. any order passed under section 144 shall be subject to sub-clause (4) and would therefore be valid only for a period of two months. there can be a revision of the order by a Magistrate in case the court finds the arbitrary or unfair exercise of power. under section 134 the order must be served on the person against whom it is made (sub-section 1). or else. when such personal service is not feasible a copy of the said order must be stuck up at such place(s) as may be deemed fit (sub-section 2). In these circumstances a general order may be necessary where the number of persons is so large that distinction between them and the general public cannot be made. The state government can extend this time period of two months to a maximum of six months from the date of the expiry of the initial order. if the said procedure were not properly followed. any irregularity in the method of promulgation would not by itself make the order ultra vires. The notice issued must be follow the terms of the order passed and should not be couched in wider terms. in these circumstances a general service of order is done through publication of the order in a daily newspaper etc. it is not competent to a Magistrate to revive or resuscitate his order from time to time. As it has already been remarked earlier. the power conferred upon the state government is executive in nature. However. if it finds it imperative for prevention of certain situations causing disturbances of safety. those expressly mentioned in the order itself. . Nevertheless. Duration of the Order As expressly mentioned in the section. section 134 of the Criminal Procedure Code is attracted. Although. if it can be shown that the person against whom the order was directed did in fact have knowledge of such order being issued against him. health or peace. However. occasions may arise when it is not possible to distinguish between those people whose conduct must be controlled and those whose conduct is clear. the order made would then be deemed illegal. For this. Such an exercise of power would clearly constitute abuse of power. Therefore.

137] .. [S. on appearance of the person against whom the order was made. and a copy thereof shall be stuck at such place as may be fittest for conveying the information to such person. 136] PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED Where an order is made under Section 133 for the purpose of preventing obstruction. channel or place. IPC and the order shall be made absolute. the Magistrate shall. etc. he shall proceed in accordance with Section 138. within the time and in the manner specified in the order. —If such person does not perform such act or appear to show cause. [S. nuisance or danger to the public in the use of any way.Service or notification of order —The order shall be served on the person against whom it is made in the manner provided for service of a summons. the act directed thereby. it shall be notified by proclamation duly published. If in such inquiry the Magistrate finds reliable evidence in support of such denial. river. the Magistrate shall inquire into the matter. shall not be allowed to make any such denial in the subsequent proceedings. question him as to whether he denies the existence of any public right in respect of the way. [S. river. he shall stay the proceedings until the matter of the existence of such right has been decided by competent court. 135] Consequence of his failing to do so. [S. and if he finds no such evidence. or (b) appear and show cause against the order. and if he does so. he shall be punishable under Section 188. 134] Person to obey the order or to show cause —The person against whom such an order is made shall— (a) perform. If it cannot be so served. A person who has failed to deny the existence of such a public right or who even after such denial has failed to adduce reliable evidence in its support.

no further proceedings shall be taken in the case. If the Magistrate is satisfied that the order is reasonable and proper the order shall be made absolute. LOCAL INVESTIGATION AND EXPERT EVIDENCE The Magistrate may for the purposes of an inquiry under Section 137 or Section 138 (i. [S. if he is not so satisfied. as mentioned in para 2 and 3 above)— (a) direct a local investigation to be made. the Magistrate shall take evidence in the matter as in a summons case. The object of Section 137 is that if the denial of the public pathway. the matter should be decided by a competent civil court and not by a Magistrate in a summary inquiry provided under Section 137. It is not permissible to adduce evidence by way of affidavits and the Magistrate is bound to record evidence in the same manner as is recorded in a summons case. the Magistrate may— (a) furnish such person with such written instructions as may seem necessary for his guidance. etc. This latter inquiry can be made after the inquiry contemplated by Section 137 has resulted in a finding against the person to whom the conditional order was issued. or (b) summon and examine an expert. 139] Where the Magistrate directs a local investigation by any person under Section 139. . PROCEDURE WHERE HE APPEARS TO SHOW CAUSE If the person against whom an order under Section 133 is made appears and shows cause against the order. involves a bona fide claim on the part of the person denying the public right.The inquiry as contemplated by Section 137 above is confined only to the denial of the public right and it has nothing to do with the inquiry made for determining whether or not the conditional order made under Section 133(1) is reasonable or proper.. [S. 138] It is imperative for the Magistrate to take evidence in the matter and therefore he cannot just dispose of the matter without taking any evidence. e. His inspection of the site will not be of any use.

142(1) & (2)] . 141(3)] It has been held that the order passed by a court cannot be reviewed by itself. [S. [S. The report of such person may be read as evidence in the case. [S. 140(1)and (2)] Where the Magistrate summons and examines an expert. [S. in case of disobedience. he may direct by whom the costs of such summoning and examination shall be paid. the Magistrate may cause it to be performed. IPC.(b) declare by whom the expenses of the local investigation shall be paid. 140(3)] PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE When an order has been made absolute under Section 136 or Section 138. INJUNCTION PENDING INQUIRY If a Magistrate making an order under Section 133 considers that immediate measures are necessary to prevent imminent danger or injury of a serious kind to the public. and inform him that. Nor could the order be amended without giving notice to the parties. and may recover the costs of performing it. the Magistrate shall give notice of the same to the person against whom the order was made. either by the sale of any building. [S. he may issue such an injunction to the person against whom the order was made. 141(2)] No suit shall lie in respect of anything done in good faith under the above provisions. he shall be liable to punishment under Section 188. In default of such person forthwith obeying such injunction. as is required to obviate or prevent such danger or injury pending the determination of the matter. 141(1)] If such act is not performed within the time fixed. [S. the Magistrate may himself use such means as are necessary to obviate such danger or to prevent such injury. or by the distress and sale of any other movable property of such person. goods or any other property removed by his order. and shall require him to perform the act directed by the order within the time fixed in the notice.

[S. Conclusion After careful analysis of the concerned section in the light of judicial pronouncement and academic commentaries. The fact that the High Court can review the order of a Magistrate under this section makes the exercise of this power more rational. albeit discretionary. . may order any person not to repeat or continue a public nuisance as defined in the Indian Penal Code or any special or local law [S 143] Such an order can be passed only if the matter has been adjudicated by a competent court. 142(3)] MAGISTRATE MAY PROHIBIT REPETITION OR CONTINUANCE OF PUBLIC NUISANCE A District Magistrate or Sub-Divisional Magistrate. section 144. the paper can be concluded with the assertion that. Though. there are various fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. justice and fairness demand that an order of injunction should ordinarily be issued only after affording an opportunity to the affected person of being heard. There have been numerous cases filed against the section challenging the constitutional validity of the section and an equal number of decisions upholding its legitimacy. is an essential element in the set of measures that are undertaken by the executive body of any district in order to prevent as well as manage situations of urgency. Disobedience of the order is punishable under Section 291 of the IPC. or any other Executive Magistrate duly empowered in this behalf. discretionary powers are conferred upon the Magistrate under this section. No suit shall lie in respect of anything done in good faith by a Magistrate under the above provision.Though there is no specific provision to give notice to the person concerned before an injunction is issued.

1950 . the increasing cases of riots and other incidents ruining public peace and tranquility has made it mandatory for the Magistrates to have such powers so as to secure the common people the safety and peace which is essential for their living. 10 Article 21. and the need to protect the personal liberty and other freedoms granted to the citizens under the fundamental rights of the Constitution. However. it may be opined that there appears to be a need to balance the granting of plenary powers by the legislature to deal with emergent situations. at this juncture. Moreover. The Constitution of India. especially Article 2110.

1973 2. Lectures on Criminal Procedure Code. Criminal Procedure Code. K Basu 4. Sarkar on Law of Criminal Procedure 5. Code of Criminal Procedure.Bibliography 1.D.Ratanlal & Dhirajlal . Law of Criminal Procedure.R V Kelkar 3.