Karnataka High Court
Sri Adrushya Kadeshwara Swamiji vs The Deputy Commissioner on 25 November, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
Reserved on : 19.11.2025
Pronounced on : 25.11.2025
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 25TH DAY OF NOVEMBER, 2025
BEFORE
R
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.108686 OF 2025 (GM - RES)
BETWEEN:
SRI ADRUSHYA KADESHWARA SWAMIJI
S/O GURU MUPPINA KADESHWARA SWAMIJI
AGED ABOUT 63 YEARS
ADDRESS: KANERI MATHA/MUTT
KOLHAPUR, DISTRICT: KOLHAPUR
MAHARASTRA STATE - 416 234
... PETITIONER
(BY SRI VENKATESH P.DALWAI, ADVOCATE A/W
SRI GANAPATI M.BHAT, ADVOCATE)
Digitally signed by
VISHAL NINGAPPA
PATTIHAL AND:
Location: High
Court of Karnataka,
Dharwad Bench,
Dharwad THE DEPUTY COMMISSIONER
OFFICE OF THE DEPUTY COMMISSIONER
DHARWAD DISTRICT
DHARWAD - 580 007.
... RESPONDENT
(BY SRI GANGADHAR J.M., AAG A/W
SRI T.HANUMAREDDY, AGA)
2
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO A) A WRIT IN
THE NATURE OF CERTIORARI BY QUASHING THE ORDER DATED.
04/11/2025 PASSED BY THE RESPONDENT HEREIN NO. MAG-1/Sha
Su/Va Hi-257/2025-26 PRODUCED AT ANNEXURE-C IN THE
INTREST OF JUSTICE AND EQUITY.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 19.11.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner - Pontiff of Kaneri Mutt, Kolhapur
District, Kolhapur, is at the doors of this Court calling in
question a prohibitory order dated 04.11.2025, passed
against him invoking Section 163(4) of the BNSS, 2023. By
virtue of the said order, the petitioner has been forbidden
from entering the territorial limits of Dharwad district, for
the period commencing from 05.11.2025 and extending upto
03.01.2026.
2. Facts adumbrated, are as follows:
The petitioner - Pontiff is said to have accepted Sanyasa and is
called as 'Adrushya Kadeshwara Swamiji' and becomes the 49th
Matadhipathi of Kaneri Mutt. It is the claim of the petitioner that he
3
has by following certain traditions and teachings of Saint
Basavanna, is said to have involved in social projects ranging from
free education, scientific and organic agriculture. The Government
of Karnataka is said to have arranged and organised Basava
Samskruthi Abhiyan Convention and at the said meeting, the
Lingayat leaders have passed a Five-Point Resolution to identify the
Lingayat in terms of religion and Indian in terms of nationality. The
campaign also demanded to identify the Lingayat as a separate
religion and community members to be identified as Lingayat in
State's socio-economic and educational survey. The petitioner
responded by making certain statements.
2.1. When things stood thus, the Vijayapura District
Administration passes an order - prohibitory order, on the score
that the law and order in the area is threatened and therefore, the
petitioner should not be permitted to enter Vijayapura District. The
said prohibitory order comes about on 15.10.2025. The petitioner
questions the said prohibitory order before the Kalaburagi Bench of
this Court in W.P.No.203149 of 2025. The writ petition comes to be
dismissed on 17.10.2025. The said order is challenged before the
Apex Court in SLA. (Crl.) No.17121 of 2025, which also comes to be
4
dismissed on 29.10.2025. The Apex Court is said to have clarified
that the impugned order therein should not form the basis for
passing fresh orders.
2.2. It is the claim of the petitioner that the petitioner is
invited to religious programs across the State of Karnataka by the
disciples or his followers as the case would be. One organization by
name Jagathika Lingayat Mahasabha, Annigeri Branch, Dharwad,
submits a representation on 31.10.2025, alleging that the petitioner
cannot attend the function at Dharwad, between 05.11.2025 and
07.11.2025 and such requests were squarely based upon the
dismissal of the earlier writ petition and the order of the Apex Court.
The State passes an order on 04.11.2025, restricting the entry of
the petitioner into Dharwad District from 05.11.2025 to 03.01.2026.
The prohibitory order is passed invoking Section 163 of the BNSS.
It is this that has driven the petitioner - Pontiff to this Court in the
subject petition.
3. Heard Sri Venkatesh P. Dalwai along with Sri Ganapati M.
Bhat, learned counsel for the petitioner and Sri Gangadhar J.M.,
5
learned Additional Advocate General along with Sri T. Hanumareddy,
learned Additional Government Advocate for the respondent.
SUBMISSIONS:
PETITIONER:
4. Sri Venkatesh P. Dalwai, learned counsel appearing for the
petitioner would vehemently contend that the power to pass a
prohibitory order under Section 163 of the BNSS, is used by the
State with mala fide intention and extraneous considerations and
without any notice to the petitioner as to the basis on which the
prohibitory orders would be passed. He would submit that the Apex
Court has clearly held that the order passed qua Vijayapura District
must not be used as a foundation for passing fresh orders. The
impugned order refers to the order passed by the learned Single
Judge quoted supra and the order of the Apex Court quoted supra,
which is in blatant violation of what the Apex Court observes. Apart
from the said contention, the learned counsel would submit that the
prohibitory order takes away the fundamental right of movement of
the petitioner and therefore, it cannot be passed without any rhyme
or reason and the order suffers from non-application of mind. He
would submit that the order is in violation of the principles of natural
6
justice and is high-handed without even looking into the fact that
the representation to stop the entry of the petitioner into Dharwad
District was only on dates between 05.11.2025 and 07.11.2025 and
the two days has become two months without any basis. He would
seek quashment of the order.
THE STATE:
5. Per contra, the learned Additional Advocate General would
put up vehement opposition contending that his submission may be
taken as objections. He would contend by taking this Court through
the order passed by the learned Single Judge in W.P.No.203149 of
2025 at the Kalaburgi Bench of this Court to contend that what the
petitioner spoke and what had become is the subject matter of the
aforesaid order, which still subsists as the petitioner,
notwithstanding the order of the Apex Court continues to speak in
the same manner that he has spoken earlier. Therefore, as a
matter of abundant caution, apprehending that he would generate
disharmony amongst the people of the locality, the prohibitory order
is passed. The State is well within its power to pass a prohibitory
order on the basis of the report obtained from the hands of the
jurisdictional police and there cannot be fetter on the power of the
7
State to pass a prohibitory order owing to the aforesaid
apprehension of law and order situation. The learned Additional
Government Advocate would further contend that the impugned
order is an independent order passed after enquiry by the learned
Magistrate based on the report of the Superintendent of Police. He
would seek dismissal of the petition.
6. Learned counsel for the petitioner would join issue by
placing reliance upon plethora of judgments on the issue, all of
which would bear consideration qua the relevance in the course of
the order.
7. I have given my anxious consideration to the submissions
made by the learned counsel for the petitioner and the learned
Additional Advocate General representing the respondent - State.
CONSIDERATION:
8. The afore-narrated facts are not in dispute. The position of
the petitioner, a Pontiff, is again a matter of record. The prohibitory
order comes to be passed against the petitioner by Vijayapura
District Administration on 15.10.2025. The petitioner immediately
calls that in question before the High Court of Karnataka, Kalaburagi
8
bench in W.P.No.203149 of 2025. The coordinate bench by the
following order dismisses the writ petition:
"5. The short question that arises for consideration in
this petition is--
"Whether the prohibitory order dated
15.10.2025, restraining the petitioner from entering
Vijayapura District, warrants interference in exercise
of the extraordinary jurisdiction of this Court under
Article 226 of the Constitution of India?"
6. Before this delves into the matter, it would be
apposite to extract the statement made by petitioner, the same
is extracted as under;
"ಉ ೇಖ (1) ರನ ಯ ೕ ಅ ೕ ಕರು, ಜಯಪ ರ ಇವರು, "ಇ ೕ ೆ ೆ ಮ ಾ!ಾಷ#ದ ಜತ
&ಾಲೂ)ನ *ೕಳ,ರು ಾ-ಮದ ಸ/ಾರಂಭದ ಕ2ೇ3 ಮಠದ ಅದೃಶ7 8ಾಡ:;ೆ<ೕಶ ರ =ಾ >ೕ?ಯವರು.
*ಗುAಾ ಗ ೋಗBಾ7C- ಗುAಾ7ಗ ೋಗBಾ7C- ಅಂ&ಾ ಪ- ಾರ ನAೆ;ೈ , ಂಗಳ EೕF ಂಗಳ Gಂ;ೆ
/ಾCದ-HಾI, ಮುಖ7ಮಂ -ಗಳ ಕೃHಾ ೕಷಕ ಂ ಾಯತ ಮJಾ ೕಪ ಗಳ ಒಕೂLಟ ಕ ಾ ದ3ಂದ
ಕೂC8ೊಂಡತಹ ಬಸವ ಸಂಸP ಅQRಾನ ಎನುTವ 2ಾಟಕವನT &ೆ ೆದು8ೊಂಡು ಇC ಕ2ಾUಟಕ !ಾಜ7ದ
ತುಂಬ ರು ಾC ;ೇವರು ಗುCRಾಗ ಇಲ, ಗುAಾ7ಗ ೋಗBಾ7C-, ಮ2ಾ7Vನ ;ೇªÀæಗಳನುT ತ ೊಂಡು
ೊWಾXಗ ಾ -, ೋYೆZ;ಾಗ ೋV- ;ಾರು ಕುC3, ಅ!ಾ/ಾV3, /ಾಂ=ಾ ನT3, ಅವರನT
ಮುಂ;ೆ ಕುದ-=ೊLಂಡ ಆ ಸುWೆ ಮಕL\ ೆ ಬುE< 2ಾ2ೇ ೇಳBೇಕು. GCದು ]^_ ೇ ೊCBೇಕ ಅ ೆ,
]` ]mÉè ೊCದು-ನು ಕCಮ2ೇ" ಅನುTವಂತಹ ೇ\8ೆಯನುT 8ೊ^_ದು<. ಆ G2ೆT ೆಯ ಗದಗ,
ಜಯಪ ರ, *ೕದರ, :ಂಧನೂರು, ಕೂಡಲಸಂಗಮ. ;ಾವಣ ೇ!ೆ ಮು;ೆ<ೕ* ಾಳ, ಬಸವಕ ಾ7ಣ,
ೊಸದುಗU, Bೆಳ ಾ , cಟಗುಪI ಾಗೂ !ಾಜ7ದ ಧ dಾಗಗಳ =ಾವUಜeಕರು ಮತು
ಮJಾ ೕಶರು ಪ- ಕೃ ಗಳನುT ದG:. ತಮf ಆ8ೊ-ೕಶ ಾಗೂ ಪ- ಭಟ2ೆ /ಾC ಆ8ೊ-ೕಶ ವ7ಕಪC:,
ಮನ ಪತ-ಗಳನುT ಸ :ರು&ಾ!ೆ"
(Emphasis supplied by me)
7. It is no doubt unfortunate that differences have
arisen between two revered spiritual leaders, and the petitioner,
being a pontiff commanding considerable public following, is
expected to exhibit composure, tolerance, and restraint even in
the face of provocation. However, the material placed before
this Court reveals that the petitioner's reaction to the
remarks made by another pontiff was not confined to a
9
dignified rebuttal, but degenerated into use of threatening
and abusive language, including statements suggestive of
physical assault. Such conduct, by any measure, is wholly
inconsistent with the moral and spiritual discipline
expected of a religious head and erodes the dignity
attached to his office. A person who chooses to respond in
such an intemperate and provocative manner cannot,
merely by virtue of his ecclesiastical position, claim
immunity from the ordinary application of law or seek
indulgence under the guise of religious freedom.
8. While this Court is informed about the petitioner's
revered stature, it cannot overlook the fact that his utterances
have already resulted in public protests and created palpable
tension among devotees. In such circumstances, the preventive
measures adopted by the District Administration, based on
credible intelligence inputs, cannot be said to be arbitrary or
disproportionate. The right to movement under Article 19(1)(d)
carries with it the obligation to ensure that its exercise does not
imperil public peace. The petitioner, instead of asserting his right
in defiance of prevailing circumstances, ought to demonstrate
spiritual maturity by voluntarily deferring his visit in the larger
interest of maintaining public order.
9. The scope of the fundamental right
guaranteed under Article 19(1)(d) of the Constitution,
which confers upon every citizen the right to move freely
throughout the territory of India, is not absolute and is
subject to reasonable restrictions under Article 19(5) in
the interests of the general public. The Hon'ble Supreme
Court in Dr. N.B. Khare v. State of Delhi AIR 1950 SC 211,
has held that freedom of movement or expression cannot
be exercised in a manner that disturbs public order or
offends communal harmony. Similarly, in Himat Lal K.
Shah v. Commissioner of Police AIR 1973 SC 87, it has
been reiterated that while citizens have a right to move
freely and assemble peacefully, the State is equally
empowered to regulate such rights to prevent breach of
peace.
10. In the present case, the impugned prohibitory order
has been issued on the basis of credible intelligence inputs
indicating that the petitioner's visit to Basavana Bagewadi is
likely to trigger protests and disturb public tranquillity. The
materials on record, including the statements made by the
10
petitioner, reveal the use of abusive and derogatory
language wholly unbecoming of a person claiming
spiritual status. When such conduct is capable of
inflaming religious sentiments and provoking unrest, the
preventive measures adopted by the District
Administration cannot be termed arbitrary or excessive.
The restriction imposed is narrowly tailored to prevent
imminent disorder and does not permanently curtail the
petitioner's right under Article 19(1)(d).
11. It is expected of a person holding the exalted
position of a spiritual head or pontiff to act with restraint,
humility, and a sense of responsibility befitting the faith and
reverence reposed in him by the followers. A saint or religious
leader occupies a place of moral influence and spiritual guidance
in society, and therefore his words and actions carry far-reaching
consequences on the conduct of devotees. The petitioner,
being a pontiff of considerable following, ought to be
conscious that any statement or act perceived as
provocative or derogatory can have a cascading effect on
public peace and order. In the present case, the record
discloses that the petitioner's previous utterances
contained language that was clearly abusive and
unbecoming of a spiritual leader, which has already led to
widespread protests across the State. When such an
atmosphere of tension prevails, prudence demands that
the petitioner should voluntarily defer or avoid his
proposed visit to Basava Bagewadi, keeping in view the
larger interest of maintaining communal harmony and
public tranquillity.
12. The right guaranteed under Article 19(1)(d) of the
Constitution cannot be claimed in isolation, divorced from the
corresponding duty to ensure that its exercise does not endanger
peace or public order. A spiritual leader, more than any other
citizen, is expected to exemplify tolerance and self-restraint, and
to rise above personal grievances in order to promote harmony
and mutual respect among communities. Therefore, when the
impugned prohibitory order is based on credible intelligence
inputs and aims to prevent potential unrest, this Court finds no
ground to interfere, as the petitioner, by refraining from such
visit, would in fact be upholding the true spirit of his calling and
setting a noble example for his followers.
11
13. In Dr. Praveen Togadia v. State of Karnataka,
(2004) 4 SCC 684, the Hon'ble Supreme Court upheld a similar
prohibitory order restraining entry into a district, holding that
when credible material indicates the likelihood of breach of
peace, preventive action by the administration constitutes a
reasonable restriction under Article 19(1)(d). The Court observed
that the right to movement must yield to the paramount interest
of maintaining public order and tranquillity.
14. In contrast, reliance on Anuradha Bhasin v.
Union of India, (2020) 3 SCC 637, is misplaced, as that case
dealt with region-wide restrictions affecting the general public
and examined the proportionality of continuing limitations on
movement and communication. The present case, however,
involves a narrowly tailored preventive measure directed against
an individual whose own abusive and provocative utterances
have already led to protests and tension among devotees. The
impugned order, based on concrete intelligence inputs, is thus a
legitimate and proportionate exercise of power under Section
163 of the Bharatiya Nyaya Sanhita, 2023, intended solely to
prevent imminent disturbance to public order.
15. The scope of judicial review of an order passed by
an Executive Magistrate under Section 163 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 is necessarily limited. Such
orders are preventive and administrative in nature, issued on the
basis of subjective satisfaction formed from material placed
before the authority regarding an apprehended breach of peace.
The Court, while exercising jurisdiction under Article 226 of the
Constitution, does not sit in appeal over the satisfaction of the
Executive Magistrate or substitute its own opinion for that of the
competent authority. Interference is warranted only where
the order is shown to be patently without jurisdiction,
vitiated by mala fides, based on no material, or suffers
from manifest arbitrariness. So long as the order is
founded upon relevant and credible inputs, supported by
contemporaneous reports of the law enforcement
agencies, and the satisfaction recorded is not
demonstrably perverse or irrational, the Court would be
slow to interfere. The judicial focus in such review is
confined to examining the decision-making process rather
than the decision itself, thereby maintaining the delicate
balance between individual liberty and the necessity of
preventive action in the interest of public order. Hence,
12
the restriction falls within the ambit of Article 19(5) and
does not call for interference.
16. On overall consideration, this Court finds that the
impugned prohibitory order is based on relevant material and is
neither arbitrary nor excessive. The order represents a legitimate
preventive measure issued in the interest of maintaining public
order. No ground is made out to warrant interference in exercise
of writ jurisdiction."
(Emphasis supplied)
This is challenged by the petitioner before the Apex Court.
The Apex Court disposes the special leave to appeal - SLA (Cri.)
No.17121 of 2025, without interfering with the order, but on certain
clarifications. The order passed by the Apex Court reads as follows:
"1. Heard Mr. Raghavendra S. Srivatsa, learned senior
counsel for the petitioner and Mr. Vikas Singh, learned senior
counsel appearing for the respondent-State.
2. The Deputy Commissioner, Vijayapura District, ordered for
the externment of the petitioner from the District for a period of
two months i.e. from 16.10.2025 to 14.12.2025 under Section
163(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023. This
order has been passed on the basis of the inputs received from
the Police and the Administrative Department.
3. The High Court has upheld the aforesaid order.
4. In the facts and circumstances, we are not inclined
to interfere with the impugned order in exercise of our
power under Article 136 of the Constitution of India but
clarify that the petitioner would be free to enter the
District after 14.12.2025 until and unless there is specific
order restraining his entry.
5. It is also made clear that the order impugned dated
15.10.2025 passed by the Deputy Commissioner,
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Vijayapura District would not form the basis of
externment of the petitioner from any other District.
6. The special leave petition stands disposed of in the above
terms.
7. Pending application(s), if any, shall stand disposed of."
(Emphasis supplied)
The Apex Court observes that it was not inclined to interfere
with the impugned order but would clarify that the petitioner would
be entitled to enter the district after 14.12.2025, until and unless
there is a specific order restraining his entry. The Apex Court again
made it clear that the prohibitory order dated 15.10.2025, passed
by the Vijayapura District Administration would not form the basis of
externment of the petitioner from any other District. Thus, ended
the said episode.
THE PRESENT CONUNDRUM:
9. When things stood thus, certain program is said to have
been arranged in Dharwad District from 05.11.2025 to 07.11.2025.
The petitioner is invited. A representation springs on 30.10.2025
that the petitioner should not be permitted to enter Dharwad
District. The representation reads as follows:
14
"ಕ-ಮಸಂ.iಾ. ಂ.ಮ/09/2025-26 E2ಾಂಕ:30-10-2025
ತುತುU ಕ-ಮ8ಾLV ಮನ
ಇವ3ಂದ,
lಾರmಾಡ ? ೆಯ ಬಸವಪರ ಸಂಘಟ2ೆಗಳo
ಾಗೂ ? ೆಯ ಸಮಸ ಂ ಾಯತ3ಂದ
ಇವ3 ೆ,
/ಾನ7 ? ಾ 8ಾ3ಗಳo ಾಗೂ ? ಾ ದಂAಾ 8ಾ3ಗಳo
lಾರmಾಡ ? ೆ, lಾರmಾಡ,
/ಾನ7!ೇ,
ಷಯ: /ಾ ಾ!ಾಷ#ದ ಕ2ೆTೕ3 8ಾಡ:;ೆ<ೕಶ ರ ಮಠದ =ಾ >ಗಳo lಾರmಾಡ
? ೆಯನುT ಪ-mೇpಸದಂ&ೆ ಪ- ಬಂಧಕ ಆqೆಯನುT iಾ3 /ಾಡುವ ದು.
ಉ ೇಖ: 1) E2ಾಂಕ 17.10.2025ರಂದು ಪ- ಭಟ2ೆ /ಾC 8ಾನೂ2ಾತfಕ ಕ-ಮ
ಜರುVಸಲು ಸ :ದ ಮನ .
2) ಕ2ಾUಟಕದ ಉಚs 2ಾ7Rಾಲಯ ಾಗೂ ಸtೕUಚu 2ಾ7Rಾಲಯದ
ಆ;ೇಶಗಳo.
3) ಹ\X8ೇ3 ಾ-ಮದ ಅಮಂತ-ಣ ಪ -8ೆ.
ಉ ೇಖ 1ರ ಮನ ಪ-8ಾರ ವರಗಳನುT eೕC ಒಟು_ ಮೂರು ಕ-ಮಗಳನುT
ಜರುVಸಲು ಮತು ಈ ಕು3ತು iಾಗ ಕ ಂ ಾಯತ ಮ ಾಸdಾದ<ರ lಾರmಾಡ ? ಾ
ಘಟಕ8ೆL \ಸಲು ನಂ ಸ ಾVತು. ಇ ಯವ!ೆ ೆ ಕ-ಮಗಳನುT ಜರುVಸದ<ರ ಬ ೆw
&ಾವ \:ರುವ Eಲ. ಇದು ನಮ ೆ ಅಸ/ಾlಾನವನುTಂಟು /ಾC;ೆ. (ಉ ೇಖ 1ರ
ಪ- ಯನುT ಇದ!ೊಂE ೆ ತಮ ೆ ಪ ನಃ ಸ :;ೆ.) 8ಾರಣ ನಮf ಮನ ಯನುT
ಸ3RಾV ಪ3pೕ ಸಲು ನಂ :;ೆ.
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ಇ;ೇ ಷಯದ ಕು3ತು /ಾನ7 ? ಾ 8ಾ3ಗಳo ಾಗೂ ? ಾ
ದಂAಾ 8ಾ3ಗಳo ಜಯಪ ರ ಇವರು ? ೆಯನುT ಪ-mೇpಸBಾರದು ಎಂದು ಆ;ೇಶ
/ಾCದ<ನುT ಉಚs 2ಾ7Rಾಲಯ ಒyI8ೊಂಡು ? ಾದಂAಾ 8ಾ3ಗಳ ಆ;ೇಶವನುT
ಪ ರಸL3: ಆ;ೇp:;ೆ.
ಕ2ಾUಟಕದ ಉಚs2ಾ7Rಾಲಯದ ಆ;ೇಶದ ರುದz ಸ 8ೆRಾದ ಅ?UಯನುT
dಾರತದ ಸtೕUಚs 2ಾ7Rಾಲಯವ ರಸL3:;ೆ ಎಂದು \ದುಬಂE;ೆ. ಸtೕUಚs
2ಾ7Rಾಲಯವ ತನT ಆ;ೇಶದ ಈ 8ೆಳVನಂ&ೆ ಅQHಾ-ಯನುT ವ7ಕಪC:ರುವ ದನುT
&ಾವ ಗಮeಸ ೇ Bೇ8ಾV;ೆ.
"ಕ2ೆT3 ಮಠದ =ಾ >ೕ? )ೕಳoಮಟ_ದ ೇ\8ೆ eೕCರುವ ದು ಸ3ಯಲ.
ಪ- ೋದನ8ಾ3 ೇ\8ೆ eೕCರುವ ದು eಮf ಘನ&ೆ ೆ ತಕುLದಲ. eೕವ
=ಾ >ೕ?RಾV ಗಂQೕರmಾVರBೇಕು, eೕವ ಒWೆXಯ ಪ-iೆಯಲ, ಅವ ೇಳನ8ಾ3
dಾ{ೆ ಬಳ:E<ೕ3. mಾ| =ಾ ತಂತ-} mಾ7yಯ ಲ. eೕವ /ಾತ2ಾಡುವ ದು e :,
/ೌನmಾV ಮಠದ lಾ7ನ /ಾC"."
(Emphasis added)
The representation is from Jagathika Lingayat Mahasabha,
Dharwad District. The representation is on the basis of the order
passed by the coordinate bench, which is upheld by the Apex Court.
Immediately thereafter, the impugned order is passed. The
impugned order reads as follows:
".... .... ....
ಉ ೇಖ-1ರನTಯ, E2ಾಂಕ 30-10-2025 ರಂದು ಅಧ7 ರು, iಾಗ ಕ
ಂ ಾಯತ ಮ ಾಸdಾ, lಾರmಾಡ ? ಾ ಘಟಕ, lಾರmಾಡ ಾಗೂ ಇವ!ೊಂE ೆ 10
16
ಜನ ಈ 8ಾRಾUಲಯ8ೆL ಆಗ>:, ಮನ eೕC, ಸದರ ಮನ ಯ lಾರmಾಡ ? ಾ
ಆ€• ೇ3 &ಾಲೂ8ಾ ಹ\X8ೇ3 ಾ-ಮದ E2ಾಂಕ 05-11-2025 3ಂದ 07-11-2025
ರವ!ೆ ೆ ಜರುಗುವ p-ೕ ಸ.ಸ.ಸಹiಾನಂದ ಮ ಾ!ಾಜರ ಸHಾಹದ 8ಾಯUಕ-ಮ
ಜರುಗ ;ೆ. ಸದ3 8ಾಯUಕ-ಮ8ೆL E2ಾಂಕ 07-11-2025 ರ 8ಾಯUಕ-ಮದ
ಮ ಾ!ಾಷ#ದ ಕ2ೆTೕ3 8ಾಡ:;ೆzೕಶ ರ ಮಠದ =ಾ >ಗಳo dಾಗವGಸ ;ಾ<!ೆಂದು
ಆಮಂತ-ಣ ಪ -8ೆಯ ಪ-ಕ^ಸ ಾV;ೆ. ಈ ಾ-ಮದ 8ಾಯUಕ-ಮಗಳo ನAೆಯ ,
ಯಶ: Rಾಗ ತಮf ತಕ!ಾರು ಇಲ. ಆದ!ೆ ಈ 8ಾಯUಕ-ಮದ ಈ =ಾ >ಗಳo
dಾಗವGಸಲು ಾಗೂ lಾರmಾಡ ? ೆಯನುT ಪ-mೇpಸಲು ತಮf !ೋಧ ;ೆ.
lಾರmಾಡ ? ೆ ಪ-mೇp:ದ!ೆ ಅ‚ಾಂತ&ೆ, ಗಲdೆ ಮತು ಂ ಾಯತರ ಪ- ಭಟ2ೆ
ಉಂYಾಗುತmೆ. 8ಾರಣ ಮು2ೆTಚs3 ಕ-ಮಗಳo 8ೈ ೊಳoXವ ದು ಅವಶ7mಾV;ೆ. ಆದ<3ಂದ
ಕ2ೆTೕ3 ಮಠದ =ಾ >ಗಳo lಾರmಾಡ ? ೆ ಪ-mೇpಸBಾರದು ಎಂದು ‚ಾಶ ತmಾV
ಆ;ೇಶ /ಾಡಲು ಮನ ಯ ನಂ :8ೊಂCರು&ಾ!ೆ.
ಈ ಕು3ತು ಸದ3 ಮನ ಬ ೆw. 8ಾನೂನು ಸುವ7ವ=ೆƒ 8ಾHಾಡುವ ದೃ„_ಯ
ಾರ /ಾC ವರE ಸ ಸಲು E2ಾಂಕ 30-10-2025 ರಂದು ೕ ಅ ಕರು,
lಾರmಾಡ ? ೆ lಾರmಾಡ ಇವ3 ೆ \ಸ ಾVತು. ಅದರಂ&ೆ ಉ ೇಖ-2ರನ ಯ
E2ಾಂಕ 03-11-2025 ರಂದು ಾರ...ೆ /ಾC ಸ :ದ ತಮf ವರEಯ E2ಾಂಕ
05-11-2025 3ಂದ 07-11-2025 ರವ!ೆ ೆ lಾರmಾಡ ? ಾ ಅ€• ೇ3 &ಾಲೂಕ
ಹ\X8ೇ3 ಾ-ಮದ , ನAೆಯುವ p-ೕ ಸದುwರು ಸಮಥU ಸಹiಾನಂದ ಮ ಾ!ಾಜರ
ಸHಾಹದ ಅಂಗmಾV ಮಠದ ಭಜ2ೆ, lಾ7ನ, iಾಗರ...ೆ ಾಗೂ ಧಮUದ ಸdೆಯಂತಹ
lಾ>Uಕ 8ಾಯUಕ-ಮಗಳo ಹ>f8ೊಂCದು<, ಈ 8ಾಯUಕ-ಮದ p-ೕ ಅದೃಶ7
8ಾಡ:;ೆ<ೕಶ ರ ಮಠ ರವರು ಆಗ>ಸು ದು< ಈ G2ೆT ೆಯ ಗುಪ /ಾG
ಸಂಗ-G:;ಾಗ E2ಾಂಕ 09-10-2025 ರಂದು ಮ ಾ!ಾಷ# !ಾಜ7ದ ಜತ &ಾಲೂ)ನ
*ೕಳ,ರು ಾ-ಮದ ನAೆದ ಸdೆಯ p-ೕ ಅದೃಶ7 8ಾಡ:;ೆzೕಶ ರ ಮಠದ =ಾ >ೕ?
ಕ2ೆTೕ3 ಮಠ ಇವರ dಾಷಣದ ಂ ಾಯತ ಮJಾ ೕಶರ =ಾ >ೕ?ಗಳ ಕು3ತು
ಅವ/ಾನಕರ, ಅವ ೇಳನ8ಾ3, /ಾನ ಾeಕರ ಮತು ಧಮUದ ೆಸ3ನ ಭಜನ
17
/ಾಡಬಹು;ಾದ ಅಸ/ಾlಾನಕರ, ಅpೕಲ ಶಬ< ಬಳ:ದು< ಕ2ೆTೕ3 =ಾ >ೕ? ಇವರ
ೇ\8ೆಗಳo lಾ>Uಕ ಸGಷು•&ೆ ೆ ಧ8ೆL ತರುವ ದಲ;ೇ ಸ/ಾಜದ ಉ;ೆ-ೕಕ ಮತು
;ೆ ೕಷವನುT ಹರCಸಲು 8ಾರಣmಾಗುತ;ೆ. ಅಲ;ೇ ಂ ಾ‡ತ ಧಮUದವರು
!ೊcs ೇಳoವ ಸಂಭವ ರುತ;ೆ. ಈ GನT ೆಯ !ಾಜ7ದ Bೇ!ೆ Bೇ!ೆ ಕAೆ ೕವ
ಆ8ೊ-ೕಶ ವ7ಕmಾVರುತ;ೆ. =ಾ >ೕ?ಯ ೇ\ಕ ರುದz ಪ- ಭಟ2ೆಗಳo ನAೆಯು&ಾ
ಇzÀÄÝ ಇನುT ಮುಂEನ Eನಗಳ ಯೂ ಸಹ ಎಲ ಕAೆ ಪ- ಭಟ2ೆಗಳo ಜರುಗುವ
ಸಂದಭUವನುT ...........ಆ8ೊ-ೕಶ8ೆL 8ಾರಣmಾVರು&ಾ!ೆ ಎಂದು ೕ ಅ ೕ ಕರು,
lಾರವಡ......
]ೕಲLಂಡ ಷಯದ G2ೆT ೆಯ p-ೕ ಅದೃಶ7 8ಾಡ:;ೆzೕಶ ರ ಮಠದ =ಾ >ೕ?
ಕ2ೆTೕ3 ಮಠ ರವರು p-ೕ ಸದುwರು ಸಮಥU ಸಹiಾನಂದ ಮ ಾ!ಾಜರ ಸHಾಹದ
8ಾಯUಕ-ಮದ Hಾ ೊwಳXಲು E2ಾಂಕ 05-11-2025 3ಂದ 07-11-2025 ರಂದು
lಾರmಾಡ ? ಾ ಅ€• ೇ3 &ಾಲೂಕ ಹ\X8ೇ3 ಾ-ಮ8ೆL dೇ^ eೕಡ ದು< dೇ^ eೕCದ
ಸಂದಭUದ 8ಾಯUಕ-ಮ8ೆL ಅCˆಪCಸುವ, ಜನರ lಾ>Uಕ dಾವ2ೆಗ\ ೆ ಧ8ೆL ಉಂಟು
/ಾಡುವ ಮತು 8ಾನೂನು ಸುವ7ವ=ೆƒ ೆ ಧ8ೆL ಬರುವಂತಹ ಎಲ =ಾಧ7&ೆಗ\mೆ. ಆದ<3ಂದ
8ಾಡ:;ೆ<ೕಶ ರ =ಾ >ೕ?ಯವರ dೇ^ಯು ? ೆಯ 8ಾನೂನು ಸುವ7ವ=ೆƒ ೆ ಧ8ೆL ಬರದ
ಾ ೆ /ಾಡಲು ಸದ3 =ಾ >ೕ?ಯವರನುT E2ಾಂಕ 05-11-2025 3ಂದ 03-01-2026
ರವ!ೆ ೆ lಾರmಾಡ ? ೆRಾದ7ಂತ p-ೕ ಅದೃಶ7 8ಾಡ:;ೆzೕಶ ರ ಮಠದ =ಾ >ೕ?
ಕ2ೆTೕ3 ಮಠ ಇವರು dೇ^ eೕಡುವ ದನುT e{ೇ : *ಎ‰ಎ ಎ 163 ಕಲಂ
ಅCಯ ಆ;ೇಶ ೊರCಸುವ ದು ಅವಶ7mೆಂದು ೕ ಅ ೕ ಕರು lಾರmಾಡ ಇವರ
ವರEಯ 8ೋ3ರು&ಾ!ೆ.
ಈ ಕು3ತು ಪ3pೕ ಸ ಾV, ೕ ಅ ೕ ಕರು, lಾರmಾಡ ಇವರ
ವರEಯನುT ಅವ ೋ):;ೆ. ಸದ3 8ಾಯUಕ-ಮವ E2ಾಂಕ: 05-11-2025 3ಂದ 03-
01-2026 ರವ!ೆ ೆ dಾರ ೕಯ 2ಾಗ3ೕಕ ಸುರŠಾ ಸಂG&ೆ-2023 ರ ಕಲಂ.163 (1), (2)
ಮತು (3) ರ ರನ ಯ ? ೆಯ =ಾವUಜeಕ ‚ಾಂತ&ೆ, ಸುವ7ವ=ೆƒ ೆ ಧ8ೆLRಾಗದಂ&ೆ
ಮುಂiಾಗ-&ಾ ಕ-ಮ 8ೈ8ೊಳoXವ ದು ಸೂಕmೆಂದು ಅQHಾ-ಯಪಟು_ ಈ 8ೆಳVನಂ&ೆ
ಆ;ೇಶ /ಾಡ ಾV;ೆ.
18
ಆ;ೇಶ
ಪ-=ಾವ2ೆಯ ವ3:ರುವ ಅಂಶಗಳ ]ೕ ಂದ Eವ7 ಪ-ಭು, ?.ಆ‹.iೆ.,
dಾ.ಆ.=ೇ., ? ಾ 8ಾ3 ಾಗೂ ? ಾ ದಂAಾ 8ಾ3ಗಳo, lಾರmಾಡ ? ೆ lಾರmಾಡ
ಆದ 2ಾನು dಾರ ೕಯ 2ಾಗ3ೕಕ ಸುರŠಾ ಸಂG&ೆ 2023 ರ ಕಲಂ 163 (1), (2) ಮತು
(3) ರ ಪ-8ಾರ ಪ-ದತmಾದ ಅ 8ಾರವನುT ಚ ಾ‡: p-ೕ ಅದೃಶ7 8ಾಡ:;ೆzೕಶ ರ ಮಠದ
=ಾ >ೕ? ಕ2ೆTೕ3 ಮಠ *ೕಳ,ರು ಾ-ಮ &ಾಲೂಕ ಜತ ಮ ಾ!ಾಷ#, !ಾಜ7 ಇವರನುT
lಾರmಾಡ ? ೆಯ =ಾವUಜeಕ ‚ಾಂತ&ೆ ೆ ಧ8ೆL ಉಂYಾಗದಂ&ೆ ಮುಂiಾಗೃ&ಾ
ಕ-ಮmಾV E2ಾಂಕ 05-11-2025 3ಂದ 03-01-2026 ರವ!ೆ ೆ lಾರmಾಡ ? ೆ ೆ
ಪ-mೇpಸದಂ&ೆ ಪ- ಬಂ : ಆ;ೇp:ರು&ೇ2ೆ.
ಈ ಆ;ೇಶವನುT ಇಂದು E2ಾಂಕ:04-11-2025 ರಂದು ನನT ಸG ಮತು
Œಹ32ೊಂE ೆ ೊರCಸ ಾV;ೆ."
(sic)
(Emphasis added)
The order quoted hereinabove refers to a representation of the
Lingayat Mahasabha dated 30th October 2025. The order indicates
that Dharwad District Unit is wanting a week-long programme of a
Matha which is slated to be held between 05.11.2025 and
07.11.2025 in Hallikeri village, Anigeri Taluk, Dharwad District
wherein several Swamijis' from Kaneri Math, Maharashtra would
come and participate. The Mahasabha has no objection to the
programme but it is opposed to the petitioner participating in the
programme and in this regard a representation is submitted. In the
19
impugned order, it is indicated that the Superintendent of Police was
directed to enquire into the said representation.
10. The impugned order notices a report dated 03.11.2025 of
the Superintendent of Police and as per confidential information
collected on 09.10.2025, the petitioner had made a speech insulting
or using objectionable language about the Lingayat Matadhisha.
Therefore, it was opined that the petitioner's speech, if made, would
cause anger and hatred in the society qua the Lingayat community.
Therefore, the petitioner should be stopped from visiting Dharwad
District not only for those three days i.e., 05.11.2025 and
07.11.2025 but from 05.11.2025 for two months upto 03.01.2026.
The Deputy Commissioner on the said report observes in the
impugned order that the programme is for about two days, but as a
precautionary measure to prevent public disorder in exercise of
power conferred under Section 163(1)(2) and (3) of the BNSS
issues prohibitory order against the petitioner from entering
Dharwad District from 05.11.2025 to 03.01.2026. The afore-noted
is what the impugned order contains.
20
THE STATUTE:
11. The power invoked is under Section 163 of the BNSS.
Section 163 of the BNSS is Section 144 of the earlier regime, the
Cr.P.C. Section 163 of the BNSS and Section 144 of the Cr.P.C.,
read as follows:
SECTION 163 OF BNSS SECTION 144 OF CRPC
"C.--Urgent cases of nuisance or "C.--Urgent cases of nuisance or
apprehended danger apprehended danger
163. Power to issue order in 144. Power to issue order in
urgent cases of nuisance or urgent cases of nuisance or
apprehended danger.--(1) In apprehended danger.--(1) In
cases where, in the opinion of a cases where, in the opinion of a
District Magistrate, a Sub- District Magistrate, a Sub-
divisional Magistrate or any other Divisional Magistrate or any
Executive Magistrate specially other Executive Magistrate
empowered by the State specially empowered by the
Government in this behalf, there is State Government in this behalf,
sufficient ground for proceeding there is sufficient ground for
under this section and immediate proceeding under this section
prevention or speedy remedy is and immediate prevention or
desirable, such Magistrate may, by speedy remedy is desirable,
a written order stating the such Magistrate may, by a
material facts of the case and written order stating the
served in the manner provided by material facts of the case and
Section 153, direct any person to served in the manner provided
abstain from a certain act or to by Section 134, direct any
take certain order with respect to person to abstain from a certain
certain property in his possession act or to take certain order with
or under his management, if such respect to certain property in
Magistrate considers that such his possession or under his
direction is likely to prevent, or management, if such Magistrate
tends to prevent, obstruction, considers that such direction is
annoyance or injury to any person likely to prevent, or tends to
lawfully employed, or danger to prevent, obstruction, annoyance
human life, health or safety or a or injury to any person lawfully
21
disturbance of the public employed, or danger to human
tranquillity, or a riot, or an affray. life, health or safety, or a
(2) An order under this section disturbance of the public
may, in cases of emergency or in tranquillity, or a riot, or an
cases where the circumstances do affray.
not admit of the serving in due (2) An order under this
time of a notice upon the person section may, in cases of
against whom the order is emergency or in cases where
directed, be passed ex parte. the circumstances do not admit
(3) An order under this section of the serving in due time of a
may be directed to a particular notice upon the person against
individual, or to persons residing whom the order is directed, be
in a particular place or area, or to passed ex parte.
the public generally when (3) An order under this
frequenting or visiting a particular section may be directed to a
place or area. particular individual, or to
(4) No order under this section persons residing in a particular
shall remain in force for more than place or area, or to the public
two months from the making thereof: generally when frequenting or
visiting a particular place or
Provided that if the State area.
Government considers it necessary so
to do for preventing danger to human (4) No order under this section
life, health or safety or for preventing shall remain in force for more than
a riot or any affray, it may, by two months from the making
notification, direct that an order made thereof:
by a Magistrate under this section Provided that, if the State
shall remain in force for such further Government considers it necessary
period not exceeding six months from so to do for preventing danger to
the date on which the order made by human life, health or safety or for
the Magistrate would have, but for preventing a riot or any affray, it
such order, expired, as it may specify may, by notification, direct that an
in the said notification. order made by a Magistrate under
(5) Any Magistrate may, either on this section shall remain in force for
his own motion or on the application such further period not exceeding
of any person aggrieved, rescind or six months from the date on which
alter any order made under this the order made by the Magistrate
section by himself or any Magistrate would have, but for such order,
subordinate to him or by his expired, as it may specify in the
predecessor-in-office. said notification.
(6) The State Government may, (5) Any Magistrate may, either
either on its own motion or on the on his own motion or on the
application of any person aggrieved, application of any person aggrieved,
22
rescind or alter any order made by it rescind or alter any order made
under the proviso to sub-section (4). under this section, by himself or
(7) Where an application under any Magistrate subordinate to him
sub-section (5) or sub-section (6) is or by his predecessor-in-office.
received, the Magistrate, or the State (6) The State Government may,
Government, as the case may be, either on its own motion or on the
shall afford to the applicant an early application of any person aggrieved,
opportunity of appearing before him rescind or alter any order made by
or it, either in person or by an it under the proviso to sub-section
advocate and showing cause against (4).
the order; and if the Magistrate or the (7) Where an application under
State Government, as the case may sub-section (5) or sub-section (6) is
be, rejects the application wholly or in received, the Magistrate, or the
part, he or it shall record in writing State Government, as the case may
the reasons for so doing." be, shall afford to the applicant an
early opportunity of appearing
before him or it, either in person or
by pleader and showing cause
against the order; and if the
Magistrate or the State
Government, as the case may be,
rejects the application wholly or in
part, he or it shall record in writing
the reasons for so doing."
(Emphasis supplied)
Section 163 of the BNSS is thus, verbatim similar, to Section
144 of the earlier regime - the Cr.P.C.
JUDICIAL LANDSCAPE:
12. It is, therefore, necessary to notice the law as laid down
by the Apex Court or several High Courts interpreting Section 144 of
the Cr.P.C. and all clauses of Section 144 of the Cr.P.C.
23
INTERPRETATION BY THE APEX COURT:
12.1. The Apex Court in the case of BABULAL PARATE v.
STATE OF MAHARASHTRA1, interprets Section 144 of the Criminal
Procedure Code, 1898, which is similar to Section 144 of the Cr.P.C.
and Section 163 of the BNSS. The Apex Court observes as follows:
"18. Thirdly, according to learned counsel sub-section (1)
of Section 144 does not require the Magistrate to make an
enquiry as to the circumstances which necessitate the making of
an order thereunder. It is true that there is no express
mention anywhere in Section 144 that the order of the
Magistrate should be preceded by an enquiry. But we
must construe the section as a whole. The latter part of
sub-section (1) of Section 144 specifically mentions that
the order of the Magistrate should set out the material
facts of the case. It would not be possible for the
Magistrate to set out the facts unless he makes an
enquiry or unless he is satisfied about the facts from
personal knowledge or on a report made to him which he
prima facie accepts as correct. Clearly, therefore, the
section does not confer an arbitrary power on the
Magistrate in the matter of making an order."
(Emphasis supplied)
The Apex Court holds that though Section 144 of the Criminal
Procedure Code, 1898, does not expressly mention that the order of
the Magistrate should be preceded by an enquiry, but it would not
1
1961 SCC OnLine SC 48
24
be possible for the Magistrate to pass an order on the material facts
of the case without an enquiry, qua the facts obtaining therein.
12.2. The Apex Court in the case of MADHU LIMAYE v. SUB-
DIVISIONAL MAGISTRATE2 upholds the prohibitory order passed
against Madhu Limaye, the petitioner therein, but certain
observations made therein, by the Apex Court while upholding the
constitutionality of Section 144 of the Cr.P.C. would become
necessary to be noticed. The Apex Court observes as follows:
"22. We first take up for consideration Section 144 of the Code.
It finds place in Chapter XI which contains one section only. It is
headed "Temporary Orders in urgent cases of nuisance or apprehended
danger". The section confers powers to issue an order absolute at once
in urgent cases of nuisance or apprehended danger. Such orders may
be made by specified classes of Magistrates when in their opinion there
is sufficient ground for proceeding under the section and immediate
prevention or speedy remedy is desirable. It requires the Magistrate
to issue his order in writing setting forth the material facts of
the case and the order is to be served in the manner provided by
Section 134 of the Code. The order may direct:
"(a) any person to abstain from a certain act,
or
(b) to take certain order with certain property in his
possession or under his management.
The grounds for making the order are that in the opinion
of the Magistrate such direction
(a) is likely to prevent
or
(b) tends to prevent,
2
(1970) 3 SCC 746
25
(i) obstruction (ii) annoyance or (iii) injury, to any person
lawfully employed or (iv) danger to human life, health or safety
or (v) a disturbance of the public tranquillity or (vi) a riot or (vii)
an affray.
Stated briefly the section provides for the making of an
order which is either (a) prohibitory or (b) mandatory as shown
above. Its efficacy is that (a) it is likely to prevent or (b) it tends
to prevent, some undesirable happenings.
The gist of these happenings are
(i) obstruction, annoyance or injury to any person lawfully
employed;
or
(ii) danger to human life, health or safety;
or
(iii) a disturbance of the public tranquillity or a riot
or an affray."
23. The procedure to be followed is next stated. Under
sub-section (2) if time does not permit or the order
cannot be served, it can be made ex parte. Under sub-
section (3) the order may be directed to a particular
individual or to the public generally when frequenting or visiting
a particular place. Under subsection (4) the Magistrate may
either suo motu or on an application by an aggrieved person,
rescind or alter the order whether his own or by a Magistrate
subordinate to him or made by his predecessor-in-office. Under
sub-section (5) where the Magistrate is moved by a person
aggrieved he must hear him so that he may show cause against
the order and if the Magistrate rejects wholly or in part the
application, he must record his reasons in writing. This sub-
section is mandatory. An order by the Magistrate does not
remain in force after two months from the making thereof but
the State Government may, however, extend the period by a
notification in the Gazette but, only in cases of danger to human
life, health or safety or where there is a likelihood of a riot or an
affray. But the second portion of the sub-section was declared
violative of Article 19 in State of Bihar v. K.K. Misra. It may be
pointed out here that disobedience of an order lawfully
promulgated is made an offence by Section 188 of the Penal
Code, 1860, if such disobedience causes obstruction, annoyance
26
or injury to persons lawfully employed. It is punishable with
simple imprisonment for one month or fine of Rs 200 or both.
24. The gist of action under Section 144 is the
urgency of the situation, its efficacy in the likelihood of
being able to prevent some harmful occurrences. 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. Without it the exercise
of power would have no justification. It is not an ordinary
power flowing from administration but a power used in a
judicial manner and which can stand further judicial
scrutiny in the need for the exercise of the power, in its
efficacy and in the extent of its application. There is no
general proposition that an order under Section 144, Criminal
Procedure Code cannot be passed without taking evidence:
see Mst Jagrupa Kumari v. Chobey Narain Singh [37 Cr LJ 95]
which in our opinion is correct in laying down this proposition.
These fundamental facts emerge from the way the occasions for
the exercise of the power are mentioned. Disturbances of public
tranquillity, riots and affray lead to subversion of public order
unless they are prevented in time. Nuisances dangerous to
human life, health or safety have no doubt to be abated and
prevented. We are, however, not concerned with this part of the
section and the validity of this part need not be decided here. In
so far as the other parts of the section are concerned the key-
note of the power is to free society from menace of serious
disturbances of a grave character. The section is directed
against those who attempt to prevent the exercise of
legal rights by others or imperil the public safety and
health. If that be so the matter must fall within the
restrictions which the Constitution itself visualizes as
permissible in the interest of public order, or in the
interest of the general public. We may say, however, that
annoyance must assume sufficiently grave proportions to
bring the matter within interests of public order."
(Emphasis supplied)
27
12.3. Later, the Apex Court in the case of GULAM ABBAS v.
STATE OF U.P.3 holds as follows:
".... .... ....
24. Turning to the 1973 Code itself the scheme of
separating Judicial Magistrates from Executive Magistrates with
allocation of judicial functions to the former and the executive or
administrative functions to the latter, as we shall presently
indicate, has been implemented in the Code to a great extent.
Section 6 provides that there shall be in every State four classes
of criminal courts, namely, (i) Courts of Session, (ii) Judicial
Magistrates of the First class and, in any metropolitan area,
Metropolitan Magistrates;(iii) Judicial Magistrates of the Second
Class; and (iv) Executive Magistrates; Sections 8 to 19 provide
inter alia for declaration of metropolitan area, establishment of
Courts of Session, Courts of Judicial Magistrates, Courts of
Metropolitan Magistrates and appointments of Sessions Judges,
Additional Sessions Judges, Assistant Sessions Judges, Chief
Judicial Magistrates, Judicial Magistrates, Chief Metropolitan
Magistrates and Metropolitan Magistrates together with inter se
subordination, but all appointments being required to be made by
the High Court, while Sections 20, 21, 22 and 23 deal with
appointments of District Magistrates, Additional District
Magistrates, Executive Magistrates, Sub-Divisional Magistrates
and Special Executive Magistrates and their respective
jurisdictions in every district and metropolitan area together with
inter se subordination, but appointments being made by the State
Government. Chapter III comprising Sections 26 to 35 clearly
shows that Executive Magistrates are totally excluded from
conferment of powers to punish, which are conferred on Judicial
Magistrates; this shows that if any one were to commit a breach
of any order passed by an Executive Magistrate in exercise of his
administrative or executive function he will have to be challenged
or prosecuted before a Judicial Magistrate to receive punishment
on conviction. Further, if certain sections of the present Code are
3
(1982) 1 SCC 71
28
compared with the equivalent sections in the old Code it will
appear clear that a separation between judicial functions and
executive or administrative functions has been achieved by
assigning substantially the former to the Judicial Magistrates and
the latter to the Executive Magistrates. For example, the power
under Section 106 to release a person on conviction of certain
types of offences by obtaining from him security by way of
execution of bond for keeping peace and good behaviour for a
period not exceeding three years -- a judicial function is now
exclusively entrusted to a Judicial Magistrate whereas under
Section 106 of the old Code such power could be exercised by a
Presidency Magistrate, a District Magistrate or Sub-Divisional
Magistrate; but the power to direct the execution of a similar
bond by way of security for keeping peace in other cases where
such a person is likely to commit breach of peace or disturb the
public tranquillity -- an executive function of police to maintain
law and order and public peace which was conferred on a
Presidency Magistrate, District Magistrate, etc. under the old
Section 107 is now assigned exclusively to the Executive
Magistrate under the present Section 107; Chapter X of the new
Code deals with the topic of maintenance of public order and
tranquillity and in that Chapter Sections 129 to 132 deal with
unlawful assemblies and dispersal thereof, Sections 133 to 143
deal with public nuisance and abatement or removal thereof,
Section 144 deals with urgent cases of nuisance and apprehended
danger to public tranquillity and Sections 145 to 148 deal with
disputes as to immovable properties likely to cause breach of
peace -- all being in the nature of executive ("police") functions,
powers in that behalf have been vested exclusively in Executive
Magistrates whereas under equivalent provisions under the old
Code such powers were conferred indiscriminately on any
Magistrate, whether Judicial or Executive. In particular it may be
stated that whereas under the old Section 144 the power to take
action in urgent cases of nuisance or apprehended danger to
public tranquillity had been conferred on "a District Magistrate, a
Chief Presidency Magistrate, a Sub-Divisional Magistrate or any
other Magistrate, specially empowered by the State Government",
under the present Section 144 the power has been conferred on
"a District Magistrate, a Sub-Divisional Magistrate or any other
29
Executive Magistrate specially empowered by the State
Government in that behalf". Having regard to such
implementation of the concept of separation of judicial functions
from executive or administrative functions and allocation of the
former to the Judicial Magistrates and the latter to the Executive
Magistrates under the Code of 1973, it will be difficult to accept
the contention of the counsel for Respondents 5 and 6 that the
order passed by a District Magistrate, Sub-Divisional Magistrate
or any other Executive Magistrate under the present Section 144
is a judicial or quasi-judicial order, the function thereunder being
essentially an executive (police) function. Under the new Code
the designation of District Magistrate or Sub-Divisional Magistrate
has been statutorily used in relation to officers performing
executive functions only in recognition of the concept of
separating Executive Magistrates from Judicial Magistrates. It is
true that before passing the order the District Magistrate,
Sub-Divisional Magistrate or the Executive Magistrate
gives a hearing to parties except in cases of emergency
when ex parte order can be made under Section 144(2) by
him without notice to the person or persons against whom
it is directed, but in which cases on an application made by any
aggrieved person he has to give hearing to such person under
Section 144(5) and thereupon he may rescind or alter his earlier
order. It is also true that such an order made by the Executive
Magistrate is revisable under Section 397 of the Code because
under the Explanation to that section all Magistrates, whether
Executive or Judicial or whether exercising appellate or original
jurisdiction, are deemed to be inferior courts for purposes of the
revisional power of the High Court or Court of Session. But the
fact that the parties and particularly the aggrieved party are
heard before such an order is made merely ensures fair play and
observance of audi alteram partem rule which are regarded as
essential in the performance of any executive or administrative
function and the further fact that a revision lies against the order
of the Executive Magistrate either to the Sessions Court or to the
High Court removes the vice of arbitrariness, if any, pertaining to
the section. In fact, in the three decisions of this Court which
were relied upon by counsel for Respondents 5 and 6
namely Babulal Parate case [AIR 1961 SC 884 : (1961) 3 SCR
30
423] , K.K. Misra case [(1969) 3 SCC 337 : AIR 1971 SC 1667 :
(1970) 3 SCR 181 : (1971) 1 SCJ 621] and Madhu Limaye
case [(1970) 3 SCC 746 : AIR 1971 SC 2486 : (1971) 2 SCR 711
: 1971 Cri LJ 1721] where the constitutionality of Section 144 of
the old Code was challenged on the ground that it amounted to
unreasonable restriction on the fundamental right of a citizen
under Article 19(1) of the Constitution, the challenge was repelled
by relying upon these aspects to be found in the provision. In
our view, however, these aspects cannot make the order a
judicial or quasi-judicial order and such an order issued
under Section 144 of the present Code will have to be
regarded as an executive order passed in performance of
an executive function where no lis as to any rights
between rival parties is adjudicated but merely an order
for preserving public peace is made and as such it will be
amenable to writ jurisdiction under Article 32 of the
Constitution. We would like to mention in this context that
the power conferred upon Section 144 CrPC, 1973 is
comparable to the power conferred on the Bombay Police
under Section 37 of the Bombay Police Act, 1951, -- both
the provisions having been put on the statute-book to
achieve the objective of preservation of public peace and
tranquillity and prevention of disorder and it has never
been disputed that any order passed under Section 37 of
the Bombay Police Act is subject to writ jurisdiction of the
High Court under Article 226 of the Constitution on the
ground that it has the effect of violating or infringing a
fundamental right of a citizen. The nature of the power
under both the provisions and the nature of function
performed under both being the same by parity of
reasoning an order made under Section 144 CrPC, 1973
must be held to be amenable to writ jurisdiction either
under Article 32 or under 226 of the Constitution if it
violates or infringes any fundamental right. The contention
raised by counsel for Respondents 5 and 6 therefore, has
to be rejected.
25. Having come to the conclusion that the order under
Section 144 CrPC, 1973 is amenable to writ jurisdiction under
31
Article 32, the same being in exercise of executive power in
performance of executive function the next question that we have
to deal with is whether the petitioners could be said to have made
out any ground for challenging the impugned order passed by the
City Magistrate, Varanasi on November 24, 1979 prohibiting both
Shia and Sunni communities from holding their Majlises and
imposing other restrictions on the occasion of celebration of
Moharram festival at the Baradari in Mohalla Doshipura. As
already stated the challenge to this order was incorporated in the
writ petition by way of an amendment which had been allowed by
the Court. Since however, that impugned order has by now
exhausted itself by efflux of time it would not be proper for us to
go into either the grounds of challenge urged by the petitioners or
the materials justifying the same put forward by the respondents
for determining its legality or validity. Since however, occasions
or situations arise even during a year as well as year after year
making it necessary for the executive magistracy of Varanasi to
take action under Section 144 and since it has been the
contention of the petitioners, -- though stoutly disputed by all the
respondents -- that the exercise of the power under the said
provision has invariably been perverse and in utter disregard of
the lawful exercise of their legal rights to perform their religious
ceremonies and functions on the plots and structures in question
it will be desirable to make general observations by way of
providing to the local authorities requisite guide-lines with a view
to ensure a correct and proper exercise thereof with a brief
reference to few decided cases on the point.
26. Without setting out verbatim the provisions of
Section 144 of the 1973 Code, we might briefly indicate the
nature of power thereunder and what it authorises the
executive magistracy to do and in what circumstances. In
urgent cases of nuisance or apprehended danger, where
immediate prevention or speedy remedy is desirable, a
District Magistrate, a Sub-Divisional Magistrate or any
other Executive Magistrate specially empowered by the
State Government in this behalf may, by a written order
stating the material facts of the case, direct a particular
individual, or persons residing in a particular place or area,
32
or the public generally when frequenting or visiting a
particular place or area, (i) to abstain from a certain act or
(ii) to take certain order with respect to certain property in
his possession or under his management, if he considers
that such direction is likely to prevent or tends to prevent
obstruction, annoyance or injury to any other person
lawfully employed, or danger to human life, health or
safety, or a disturbance of public tranquillity, or a riot or
an affray. As stated earlier sub-section (2) authorises the
issuance of such an order ex parte in cases of emergency
or in cases where circumstances do not admit of the
serving in due time of a notice upon the person or persons
against whom the order is directed but in such cases under
sub-section (5) the Executive Magistrate, either on his own
motion or on the application of the person aggrieved after
giving him a hearing, may rescind or alter his original
order. Under sub-section (4) no order under this section
shall remain in force for more than two months from the
making thereof unless under the proviso thereto the State
Government by notification directs that such order shall
remain in force for a further period not exceeding six
months.
27. The entire basis of action under Section 144 is provided
by the urgency of the situation and the power thereunder is
intended to be availed of for preventing disorders, obstructions
and annoyances with a view to secure the public weal by
maintaining public peace and tranquillity. Preservation of the
public peace and tranquillity 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 emergent situations and as such it may become
necessary for the Executive Magistrate to override temporarily
private rights and in a given situation the power must extend to
restraining individuals from doing acts perfectly lawful in
themselves, for, it is obvious that when there is a conflict
between the public interest and private rights the former must
prevail. It is further well settled that the section does not
confer any power on the Executive Magistrate to
adjudicate or decide disputes of civil nature or questions of
title to properties or entitlements to rights but at the same
33
time in cases where such disputes or titles or entitlements
to rights have already been adjudicated and have become
the subject-matter of judicial pronouncements and decrees
of civil courts of competent jurisdiction then in the
exercise of his power under Section 144 he must have due
regard to such established rights and subject of course to
the paramount consideration of maintenance of public
peace and tranquillity the exercise of power must be in aid
of those rights and against those who interfere with the
lawful exercise thereof and even in cases where there are
no declared or established rights the power should not be
exercised in a manner that would give material advantage
to one party to the dispute over the other but in a fair
manner ordinarily in defence of legal rights, if there be
such and the lawful exercise thereof rather than in
suppressing them. In other words, the Magistrate's action
should be directed against the wrong-doer rather than the
wronged. Furthermore, it would not be a proper exercise of
discretion on the part of the Executive Magistrate to interfere with
the lawful exercise of the right by a party on a consideration that
those who threaten to interfere constitute a large majority and it
would be more convenient for the administration to impose
restrictions which would affect only a minor section of the
community rather than prevent a larger section more vociferous
and militant."
(Emphasis supplied)
The Apex Court reiterates that Section 144 of the Cr.P.C. is
provided to meet the urgency of the situation and the power
thereunder is to be exercised for preventing disorder, obstruction
and annoyance with a view to secure public weal by maintaining
public peace and tranquillity. The Apex Court further holds that an
Order passed under Section 144 of the Cr.P.C. being an
administrative or executive order is amenable to writ jurisdiction
34
under Article 226 if it violates the fundamental rights of the person
against whom it is passed.
12.4. In ACHARYA JAGDISHWARANAND AVADHUTA v.
COMMISSIONER OF POLICE4, the Apex Court holds as follows:
"16. It is the petitioner's definite case that the prohibitory
orders under Section 144 of the Code are being repeated at
regular intervals from August 1979. Copies of several
prohibitory orders made from time to time have been produced
before us and it is not the case of the respondents that such
repetitive prohibitory orders have not been made. The order
under Section 144 of the Code made in March 1982 has also
been challenged on the ground that the material facts of the
case have not been stated. Section 144 of the Code, as far as
relevant, provides: "(1) In cases where in the opinion of a
District Magistrate, a Sub-Divisional Magistrate, or any other
Executive Magistrate specially empowered by the State
Government in this behalf, there is sufficient ground for
proceeding under this section and immediate prevention or
speedy remedy is desirable, such Magistrate may, by a written
order stating the material facts of the case and served in the
manner provided by Section 134, direct...." It has been the
contention of Mr Tarkunde that the right to make the order is
conditioned upon it being a written one and the material facts of
the case being stated. Some High Courts have taken the view
that this is a positive requirement and the validity of the order
depends upon compliance of this provision. In our opinion it is
not necessary to go into this question as counsel for the
respondents conceded that this is one of the requirements of the
provision and if the power has to be exercised it should be
exercised in the manner provided on pain of invalidating for
non-compliance. There is currently in force a prohibitory order in
the same terms and hence the question cannot be said to be
academic. The other aspect viz. the propriety of repetitive
prohibitory orders is, however, to our mind a serious matter and
4
(1983) 4 SCC 522
35
since long arguments have been advanced, we propose to deal
with it. In this case as a fact from October 1979 till 1982 at the
interval of almost two months orders under Section 144(1) of
the Code have been made from time to time. It is not
disputed before us that the power conferred under this
section is intended for immediate prevention of breach of
peace or speedy remedy. An order made under this section is
to remain valid for two months from the date of its making as
provided in sub-section (4) of Section 144. The proviso to sub-
section (4) authorises the State Government in case it considers
it necessary so to do for preventing danger to human life, health
or safety, or for preventing a riot or any affray, to direct by
notification that an order made by a Magistrate may remain in
force for a further period not exceeding six months from the
date on which the order made by the Magistrate would have, but
for such order, expired. The effect of the proviso, therefore, is
that the State Government would be entitled to give the
prohibitory order an additional term of life but that would be
limited to six months beyond the two months' period in terms of
sub-section (4) of Section 144 of the Code. Several decisions of
different High Courts have rightly taken the view that it is not
legitimate to go on making successive orders after earlier orders
have lapsed by efflux of time. A Full Bench consisting of the
entire Court of 12 Judges in Gopi Mohun Mullick v. Taramoni
Chowdhrani [ILR 5 Cal 7: 4 CLR 309: 2 Shome LR 217 (FB)]
examining the provisions of Section 518 of the Code of 1861
(corresponding to present Section 144) took the view that such
an action was beyond the Magistrate's powers. Making of
successive orders was disapproved by the Division Bench of the
CalcuttaHigh Court in Bishessur Chuckerbutty v. Emperor [AIR
1916 Cal 472: 20 CWN 758: 1916 (17) Cri LJ 200]. Similar view
was taken in Swaminatha Mudaliar v. Gopalakrishna Naidu [AIR
1916 Mad 1106: 1915 (16) Cri LJ 592], Taturam Sahu v. State
of Orissa [AIR 1953 Ori 96] , Ram Das Gaur v. City Magistrate,
Varanasi [AIR 1960 All 397 : 1960 Cri LJ 865] , and Ram Narain
Sah v. Parmeshar Prasad Sah [AIR 1942 Pat 414 : 1942 (43) Cri
LJ 722] . We have no doubt that the ratio of these decisions
represents a correct statement of the legal position. The proviso
to sub-section (4) of Section 144 which gives the State
Government jurisdiction to extend the prohibitory order for a
maximum period of six months beyond the life of the order
made by the Magistrate is clearly indicative of the position that
Parliament never intended the life of an order under Section 144
of the Code to remain in force beyond two months when made
36
by a Magistrate. 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 such as Section 107 or Section 145 of the Code
when individual disputes are raised and to meet a
situation such as here, there are provisions to be found in
the Police Act. If repetitive orders are made it would
clearly amount to abuse of the power conferred by
Section 144 of the Code. It is relevant to advert to the
decision of this Court in Babulal Parate v. State of
Maharashtra [AIR 1961 SC 884: (1961) 3 SCR 423, 437: 1961
(2) Cri LJ 16] where the vires of Section 144 of the Code was
challenged. Upholding the provision, this Court observed:
"Public order has to be maintained in advance in order
to ensure it and, therefore, it is competent to a legislature to
pass a law permitting an appropriate authority to take
anticipatory action or place anticipatory restrictions upon
particular kinds of acts in an emergency for the purpose of
maintaining public order...."
It was again emphasized:
"But it is difficult to say that an anticipatory action
taken by such an authority in an emergency where danger to
public order is genuinely apprehended is anything other than
an action done in the discharge of the duty to maintain
order...."
This Court had, therefore, appropriately stressed upon the
feature that the provision of Section 144 of the Code was
intended to meet an emergency. This postulates a situation
temporary in character and, therefore, the duration of an
order under Section 144 of the Code could never have been
intended to be semi-permanent in character.
17. Similar view was expressed by this Court in Gulam
Abbas v. State of U.P. [(1982) 1 SCC 71 : 1982 SCC (Cri) 82 :
AIR 1981 SC 2198 : (1982) 1 SCR 1077 : (1981) 2 Cri LJ 1835,
1862] where it was said that (SCC p. 109, para 27) "the entire
basis of action under Section 144 is provided by the
urgency of the situation and the power thereunder is
intended to be availed of for preventing disorders,
obstructions and annoyances with a view to secure the
public weal by maintaining public peace and tranquillity
37
...". Certain observations in Gulam Abbas [(1982) 1 SCC 71 :
1982 SCC (Cri) 82 : AIR 1981 SC 2198 : (1982) 1 SCR 1077 :
(1981) 2 Cri LJ 1835, 1862] decision regarding the nature of the
order under Section 144 of the Code -- judicial or executive -- to
the extent they run counter to the decision of the Constitution
Bench in Babulal Parate case [AIR 1961 SC 884 : (1961) 3 SCR
423, 437 : 1961 (2) Cri LJ 16] may require reconsideration
but we agree that the nature of the order under Section
144 of the Code is intended to meet emergent situation.
Thus the clear and definite view of his Court is that an
order under Section 144 of the Code is not intended to be
either permanent or semi-permanent in character. The
consensus of judicial opinion in the High Courts of the
country is thus in accord with the view expressed by this
Court. It is not necessary on that ground to quash the impugned
order of March 1982 as by efflux of time it has already ceased to
be effective."
(Emphasis supplied)
The Apex Court holds that an order under Section 144 of the
Cr.P.C. is only intended to meet emergency situations and is not
intended to be permanent or semi-permanent in nature.
12.5. While considering the entire spectrum and every clause
of Section 144 of the Cr.P.C. the Apex Court in the case of
RAMLILA MAIDAN INCIDENT, IN RE5, holds as follows:
".... .... ....
50. This concept came to be illustratively explained in the
judgment of this Court in Ram Manohar Lohia [AIR 1966 SC 740 :
1966 Cri LJ 608] wherein it was held that : (AIR p. 758, para 51)
5
(2012) 5 SCC 1
38
"51. ... When two drunkards quarrel and fight, there is disorder
but not public disorder. They can be dealt with under the powers to
maintain law and order but cannot be detained on the ground that
they were disturbing public order."
However, where the two persons fighting were of rival
communities and one of them tried to raise communal passions,
the problem is still one of "law and order" but it raises the
apprehension of public disorder. The main distinction is that
where it affects the community or public at large, it will be an
issue relatable to "public order". Section 144 CrPC empowers
passing of such order in the interest of public order
equitable to public safety and tranquillity. The provisions
of Section 144 CrPC empowering the authorities to pass
orders to tend to or to prevent the disturbances of public
tranquillity is not ultra vires the Constitution.
51. In State of Karnataka v. Praveen Bhai Thogadia [(2004)
4 SCC 684 : 2004 SCC (Cri) 1387] (SCC p. 691, para 6), this
Court, while observing that each person, whatever be his religion,
must get the assurance from the State that he has the protection
of law freely to profess, practice and propagate his religion and
the freedom of conscience, held more emphatically that the
"courts should not normally interfere with matters relating to
law and order which is primarily the domain of the administrative
authorities concerned. They are by and large the best to assess and
handle the situation depending upon the peculiar needs and
necessities within their special knowledge".
52. The scope of Section 144 CrPC enumerates the
principles and declares the situations where exercise of
rights recognised by law, by one or few, may conflict with
other rights of the public or tend to endanger public peace,
tranquillity and/or harmony. The orders passed under
Section 144 CrPC are attempted to serve larger public
interest and purpose. As already noticed, under the
provisions of CrPC complete procedural mechanism is
provided for examining the need and merits of an order
passed under Section 144 CrPC. If one reads the provisions
of Section 144 CrPC along with other constitutional
provisions and the judicial pronouncements of this Court, it
can undisputedly be stated that Section 144 CrPC is a
39
power to be exercised by the specified authority to prevent
disturbance of public order, tranquillity and harmony by
taking immediate steps and when desirable, to take such
preventive measures. Further, when there exists freedom of
rights which are subject to reasonable restrictions, there are
contemporaneous duties cast upon the citizens too. The duty to
maintain law and order lies on the authority concerned and, thus,
there is nothing unreasonable in making it the initial judge of the
emergency. All this is coupled with a fundamental duty upon the
citizens to obey such lawful orders as well as to extend their full
cooperation in maintaining public order and tranquillity.
53. The concept of orderly conduct leads to a balance for
assertion of a right to freedom. In Feiner v. New York [95 L Ed
295 : 340 US 315 (1951)] the Supreme Court of the United
States of America dealt with the matter where a person had been
convicted for an offence of disorderly conduct for making
derogatory remarks concerning various persons including the
President, political dignitaries and other local political officials
during his speech, despite warning by the police officers to stop
the said speech. The Court, noticing the condition of the crowd as
well as the refusal by the petitioner to obey the police requests,
found that the conduct of the convict was in violation of public
peace and order and the authority did not exceed the bounds of
proper State police action, held as under : (L Ed p. 300)
"... It is one thing to say that the police cannot be used as an
instrument for the suppression of unpopular views, and another to
say that, when as here the speaker passes the bounds of argument
or persuasion and undertakes incitement to riot, they are powerless
to prevent a breach of the peace. Nor in this case can we condemn
the considered judgment of three New York courts approving the
means which the police, faced with a crisis, used in the exercise of
their power and duty to preserve peace and order. The findings of the
State courts as to the existing situation and the imminence of greater
disorder coupled with petitioner's deliberate defiance of the police
officers convince us that we should not reverse this conviction in the
name of free speech."
54. Another important precept of exercise of power in terms
of Section 144 CrPC is that the right to hold meetings in public
40
places is subject to control of the appropriate authority regarding
the time and place of the meeting. Orders, temporary in nature,
can be passed to prohibit the meeting or to prevent an imminent
breach of peace. Such orders constitute reasonable restriction
upon the freedom of speech and expression. This view has been
followed consistently by this Court. To put it with greater clarity,
it can be stated that the content is not the only concern of the
controlling authority but the time and place of the meeting is also
well within its jurisdiction. If the authority anticipates an
imminent threat to public order or public tranquillity, it
would be free to pass desirable directions within the
parameters of reasonable restrictions on the freedom of an
individual. However, it must be borne in mind that the
provisions of Section 144 CrPC are attracted only in
emergent situations. The emergent power is to be
exercised for the purposes of maintaining public order.
55. It was stated by this Court in Romesh Thappar [AIR
1950 SC 124 : (1950) 51 Cri LJ 1514] that the Constitution
requires a line to be drawn in the field of public order and
tranquillity, marking off, may be roughly, the boundary between
those serious and aggravated forms of public disorder which are
calculated to endanger the security of the State and the relatively
minor breaches of peace of a purely local significance, treating for
this purpose differences in degree as if they were different in
kind. The significance of factors such as security of State and
maintenance of public order is demonstrated by the mere fact
that the Framers of the Constitution provided these as distinct
topics of legislation in Entry 3 of the Concurrent List of the
Seventh Schedule to the Constitution.
56. Moreover, an order under Section 144 CrPC
being an order which has a direct consequence of placing
a restriction on the right to freedom of speech and
expression and right to assemble peaceably, should be an
order in writing and based upon material facts of the
case. This would be the requirement of law for more than
one reason. Firstly, it is an order placing a restriction
upon the fundamental rights of a citizen and, thus, may
adversely affect the interests of the parties, and secondly,
41
under the provisions of CrPC, such an order is revisable
and is subject to judicial review. Therefore, it will be
appropriate that it must be an order in writing, referring
to the facts and stating the reasons for imposition of such
restriction. In Praveen Bhai Thogadia [(2004) 4 SCC 684 :
2004 SCC (Cri) 1387] , this Court took the view that the Court,
while dealing with such orders, does not act like an appellate
authority over the decision of the official concerned. It would
interfere only where the order is patently illegal and without
jurisdiction or with ulterior motive and on extraneous
consideration of political victimisation by those in power.
Normally, interference should be the exception and not the rule.
57. A bare reading of Section 144 CrPC shows that:
(1) It is an executive power vested in the officer
so empowered;
(2) There must exist sufficient ground for
proceeding;
(3) Immediate prevention or speedy remedy is
desirable; and
(4) An order, in writing, should be passed stating
the material facts and the same be served
upon the person concerned.
These are the basic requirements for passing an order under
Section 144 CrPC. Such an order can be passed against an
individual or persons residing in a particular place or area or
even against the public in general. Such an order can remain in
force, not in excess of two months. The Government has the
power to revoke such an order and wherever any person moves
the Government for revoking such an order, the State
Government is empowered to pass an appropriate order, after
hearing the person in accordance with sub-section (7) of Section
144 CrPC.
58. Out of the aforestated requirements, the
requirements of existence of sufficient ground and need
for immediate prevention or speedy remedy is of prime
significance. In this context, the perception of the officer
recording the desired/contemplated satisfaction has to
be reasonable, least invasive and bona fide. The restraint
has to be reasonable and further must be minimal. Such
restraint should not be allowed to exceed the constraints
42
of the particular situation either in nature or in duration.
The most onerous duty that is cast upon the empowered
officer by the legislature is that the perception of threat
to public peace and tranquillity should be real and not
quandary, imaginary or a mere likely possibility.
59. This Court in Babulal Parate [AIR 1961 SC 884 :
(1961) 2 Cri LJ 16 : (1961) 3 SCR 423] had clearly stated the
following view : (AIR p. 890, para 26)
"26. The language of Section 144 is somewhat
different. The test laid down in the section is not
merely 'likelihood' or 'tendency'. The section says
that the Magistrate must be satisfied that
immediate prevention of particular acts is
necessary to counteract danger to public safety,
etc. The power conferred by the section is
exercisable not only where present danger exists
but is exercisable also when there is an
apprehension of danger."
The abovestated view of the Constitution Bench is the
unaltered state of law in our country. However, it needs
to be specifically mentioned that the "apprehension of
danger" is again what can inevitably be gathered only
from the circumstances of a given case.
60. Once an order under Section 144 CrPC is passed, it is
expected of all concerned to implement the said order unless it
has been rescinded or modified by a forum of competent
jurisdiction. Its enforcement has legal consequences. One of
such consequences would be the dispersement of an unlawful
assembly and, if necessitated, by using permissible force. An
assembly which might have lawfully assembled would be termed
as an "unlawful assembly" upon the passing and implementation
of such a preventive order. The empowered officer is also vested
with adequate powers to direct the dispersement of such
assembly. In this direction, he may even take the assistance of
officers concerned and armed forces for the purposes of
dispersing such an assembly. Furthermore, the said officer has
even been vested with the powers of arresting and confining the
persons and, if necessary, punishing them in accordance with
law in terms of Section 129 CrPC. An order under Section 144
CrPC would have an application to an "actual" unlawful assembly
43
as well as a "potential" unlawful assembly. This is precisely the
scope of application and enforcement of an order passed under
Section 144 CrPC."
(Emphasis supplied)
The Apex Court in the afore-quoted judgment has
emphatically held that the very object and purport of Section 144 of
the Cr.P.C. is to enable for issuance of temporary orders in
situations of urgent necessity, particularly, where nuisance or
apprehended danger requires immediate prevention or prompt
remedial response. The Apex Court further underscores that any
such order must disclose material facts for constituting the basis for
its issuance and must be served in the manner prescribed under
Section 134 of the Cr.P.C. and when the person does not admit
service, an order can be passed ex-parte. In RAMLILA MAIDAN
supra, the Apex Court delineates the essential postulates governing
the exercise of power under Section 144 of the Cr.P.C. It reiterates
the power is executive in character and for its exercise, there must
exist sufficient grounds warranting recourse to the said provision;
that circumstances must demand immediate prevention or a speedy
remedy. The Apex Court holds that these are the basic
requirements of passing an order under Section 144 of the Cr.P.C
44
and such an order against an individual or persons should not
remain in force, not beyond two months. The Apex Court further
holds that an order under Section 144 of the Cr.P.C. would have an
application to an actual unlawful assembly as well as a potential
unlawful assembly. This is precisely the scope of application and
enforcement of an order under Section 144 of the Cr.P.C. What
would unmistakably emerge from the afore-quoted judgment is that
Section 144 of the Cr.P.C. does not confer such power that can be
exercised in arbitrary manner. There must be sufficient ground for
proceeding and the order must set out material facts of the case in
the written order unless the Magistrate has personal knowledge or a
report that is placed before him. He must opine that it is prima facie
necessary. The Apex Court has also held that the restraint order
cannot be allowed to exceed the constraints of a particular situation
either in nature or in duration.
12.6. The Apex Court in the case of ANURADHA BHASIN v.
UNION OF INDIA6, holds as follows:
6
(2020) 3 SCC 637
45
".... .... ....
39. It has been argued by the counsel for the
petitioners that the restrictions under Article 19 of the
Constitution cannot mean complete prohibition. In this
context, we may note that the aforesaid contention cannot be
sustained in light of a number of judgments of this Court wherein
the restriction has also been held to include complete prohibition
in appropriate cases. [Madhya Bharat Cotton Assn. Ltd. v. Union
of India [Madhya Bharat Cotton Assn. Ltd. v. Union of India, AIR
1954 SC 634] , Narendra Kumar v. Union of India [Narendra
Kumar v. Union of India, (1960) 2 SCR 375 : AIR 1960 SC 430]
, State of Maharashtra v. Himmatbhai Narbheram Rao [State of
Maharashtra v. Himmatbhai Narbheram Rao, (1969) 2 SCR 392 :
AIR 1970 SC 1157] , Sushila Saw Mill v. State of Orissa [Sushila
Saw Mill v. State of Orissa, (1995) 5 SCC 615] , Pratap Pharma
(P) Ltd. v. Union of India [Pratap Pharma (P) Ltd. v. Union of
India, (1997) 5 SCC 87] and Dharam Dutt v. Union of
India [Dharam Dutt v. Union of India, (2004) 1 SCC 712] .]
40. The study of the aforesaid case law points to three
propositions which emerge with respect to Article 19(2) of
the Constitution. (i) Restriction on free speech and
expression may include cases of prohibition. (ii) There
should not be excessive burden on free speech even if a
complete prohibition is imposed, and the Government has
to justify imposition of such prohibition and explain as to
why lesser alternatives would be inadequate. (iii) Whether
a restriction amounts to a complete prohibition is a
question of fact, which is required to be determined by the
Court with regard to the facts and circumstances of each
case. [Refer to State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat [State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat,
(2005) 8 SCC 534] .]
41. The second prong of the test, wherein this Court is
required to find whether the imposed
restriction/prohibition was least intrusive, brings us to the
46
question of balancing and proportionality. These concepts
are not a new formulation under the Constitution. In
various parts of the Constitution, this Court has taken a
balancing approach to harmonise two competing rights.
In Minerva Mills Ltd. v. Union of India [Minerva Mills Ltd. v. Union
of India, (1980) 2 SCC 591] and Sanjeev Coke Mfg. Co. v. Bharat
Coking Coal Ltd. [Sanjeev Coke Mfg. Co. v. Bharat Coking Coal
Ltd., (1983) 1 SCC 147] , this Court has already applied the
balancing approach with respect to fundamental rights and
the directive principles of State policy.
.... .... ....
148. Before parting we summarise the legal position on
Section 144 CrPC as follows:
148.1. 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.
148.2. The power under Section 144 CrPC cannot be
used to suppress legitimate expression of opinion or
grievance or exercise of any democratic rights.
148.3. An order passed under Section 144 CrPC
should state the material facts to enable judicial review of
the same. The power should be exercised in a bona fide
and reasonable manner, and the same should be passed
by relying on the material facts, indicative of application
of mind. This will enable judicial scrutiny of the aforesaid
order.
148.4. 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.
47
148.5. Repetitive orders under Section 144 CrPC
would be an abuse of power."
(Emphasis supplied)
The Apex Court while succinctly summarizing the governing
principles under Section 144 of Cr.P.C., has held that the exercise of
power must confirm to the doctrine of proportionality, employing
only those measures that are least intrusive and no more restrictive
than what the circumstances demand. The order must disclose the
material facts forming its foundation so as to permit meaning
judicial scrutiny. The Authorities must act in a bona fide reasonable
and duly informed manner demonstrably reflecting application of
mind to the facts before it. The Apex Court further examines the
scope of administrative power in the context of exigent
circumstances that may justify passing an ex-parte order under
Section 144 of the Cr.P.C., reiterating that the touchstone of such
action is the urgency of the situation. The efficacy of invoking
Section 144 of the Cr.P.C., the Court holds, lies in its ability to avert
and imminent or apprehended harm without which the exercise of
such extraordinary power would stand bereft of justification.
48
12.7. On a coalesce of the principles enunciated by the Apex
Court from BABU LAL PARATE supra to ANURADHA BHASIN
supra what unmistakably emerges is that the power under Section
144 of the Cr.P.C. is to be invoked solely for the purposes of
preventing nuisance, addressing apprehended danger, ensuring
immediate prevention and securing speedy remedy - these are the
causes that animate the said provision. Correspondingly when the
State proceeds to pass an ex-parte order, the State is to record a
reasoned and speaking order setting out material facts and
demonstrating that the action is necessitated to forestall a rationally
apprehended situation. These are the broad principles laid down by
the Apex Court in the afore-mentioned cases.
INTERPRETATION BY DIFFERENT HIGH COURTS:
13. Several High Courts have interpreted Section 144 of the
Cr.P.C. Therefore, I deem it appropriate to consider a few.
13.1. The HIGH COURT OF CALCUTTA in the case of
PRODYOT KUMAR MUKHERJEE v. R. GERSAPPE, REGIONAL
MANAGER, BANK OF INDIA7, has held as follows:
7
1973 SCC OnLine Cal.135
49
"14. I will now proceed to consider the four dimensions of
the arguments raised on behalf of the second party-petitioners.
The first dimension of Mr. Bose's arguments consists of two
parts. The first part relates to the necessity of holding an
enquiry before passing an order under Section 144, Criminal
Procedure Code. It is quite true, as the Supreme Court held in
the case of Babulal Parate v. State of Maharashtra reported in
AIR 1961 SC 884 : ((1961) 2 Cri LJ 16) that Section 144,
Criminal Procedure Code does not confer an arbitrary
power and the latter part of Section 144(1) makes the
same clear. It would not be possible for the Magistrate to
hold that "there is sufficient ground for proceeding" and
set out "the material facts of the case" in the written
order unless he makes an enquiry or is satisfied about the
facts from personal knowledge or on a report made to
him which he prima facie accepts as correct. The opinion
or satisfaction of the Magistrate, as mentioned in the
Section, is therefore a mixed concept -- partly subjective
and partly objective. The order impugned clearly shows
however that the learned Chief Presidency Magistrate
perused the petition filed before him and on being
satisfied upon the materials disclosed that the situation
called for an order he passed the same. This cannot be
taken to be an arbitrary exercise of discretion. The Statute
allows it and it would neither be expedient nor proper for this
Court, to go behind this satisfaction at this stage. The answer to
the second part of the submission relating to the requirement
for stating the material facts of the case in the written order is
again twofold. Firstly, the material facts are substantially there,
though not in details in the order impugned, and is evident from
the reference to the perusal of the petition and the situation
disclosed thereby, and at this stage for the purpose of a prima
facie satisfaction, the same is sufficient enough. The order as
passed does refer to a petition disclosing a situation pin-pointing
urgency and calling for an interim order. It should not be
overlooked that the back-drop of the order is Chapter XI,
Criminal Procedure Code relating to temporary orders in urgent
cases of nuisance or apprehended danger and an assessment of
such an order cannot be oblivious of that. Secondly in any
event, such a statement of "the material facts of the case" is not
the sine qua non of an order passed ex parte under sub-section
(2) to Section 144, Criminal Procedure Code, the dominant
consideration whereof is emergency, excepting a
50
reference to the same. The words used in the Statute
therefore do not lend assurance to Mr. Bose's contention.
... ... ....
18. Mr. Bose then referred to the case of P.T. Chandra,
Editor Tribune v. Emperor reported in AIR 1942 Lahore 171 :
(43 Cri LJ 747) (Full Bench) wherein Chief Justice Young
delivering the judgment of the Court held at p. 172 that
"In this order no material facts, which would
justify the order, have been given. To justify an order
under Section 144 there must be a causal connexion
between the act prohibited and the danger
apprehended to prevent which the order is passed."
(Emphasis supplied)
13.2. The HIGH COURT OF ANDHRA PRADESH in the case
of BIJINIBEMULA LINGA MURTHY REDDY v. BINJI HUSSAIN
SAHEB8, has held as follows:
".... .... ....
6. The grounds urged to say that the impugned order is
one made without jurisdiction and is illegal are that the essential
factors which give jurisdiction to the Sub-divisional Magistrate to
act under Sec. 144 Cr. P.C. are conspicuously absent in his order
and that it does not also contain anything to justify the denial of
an opportunity to the petitioners to be heard before making the
order. Section 144 finds place in Chapter X of the Code
dealing with maintenance of public order and tranquillity.
The important conditions necessary to justify action under Sec.
144, as can be seen from the provisions thereof, are that the
Magistrate must be satisfied about the necessity for immediate
prevention of an act by the person or persons in possession of
property, which in his judgment is likely to cause obstruction,
annoyance or injury to any person lawfully employed, danger to
human life, health or safety, or disturbance of the public
8
1979 SCC OnLine AP 213
51
tranquillity or a riot, or an affray. It is the urgency of the case
calling for a speedy remedy or immediate preventive action that
invests the Magistrate with jurisdiction to act under Sec. 144. It
can also be seen from the marginal heading that Sec. 144 is
intended to clothe the Magistrate with powers to issue orders in
urgent cases of nuisance or apprehended danger. So, if there is
neither urgency calling for the application of a speedy
remedy or preventive action nor apprehension of danger
to human life, health or safety etc. resulting from
obstruction, annoyance or injury to any person lawfully
employed, the Magistrate cannot clutch at jurisdiction for
issuing an order under Sec. 144 Cr. P.C. A mere statement
in the order that the Magistrate considers it necessary to
take urgent action is not sufficient if the facts show that,
in reality, there is no such urgency for the preventive
action. However, not only is there no reference to the need for
immediate prevention or a speedy remedy in the impugned
order: but there was in fact no such urgency since the
information placed before the Sub-divisional Magistrate simply
showed that the respondent, with an ulterior motive to grab the
lands of the complainant Binji Hussain Saheb, obstructed the
flow of water to his lands from S.N. 533 belonging to them, thus
causing annoyance and threat to the complainant. So it is not
as the act alleged against the respondents was such as
would endanger human life, health or safety or would
result in disturbance of public tranquillity to call for a
speedy remedy or urgent preventive action. If it is borne
in mind that the land through which Binji Hussain Saheb
claimed the right to take water to his own lands
admittedly belongs to the respondents, it can easily be
seen that this is pre-eminently a matter for decision by a
Civil Court. Except a bald statement that Hussain Saheb has a
right to unobstructed flow of water through S. No. 533 to his
lands under field to field irrigation system of K.C. Canal, there is
nothing else in the impugned order indicating whether the
alleged right is based on easement, grant or contract or whether
it is a natural right. When it is not in dispute that S. No. 533,
over which the right in question was claimed by Hussain Saheb
admittedly belongs to the respondents, the effect of the order
under challenge would be suppression of their legal rights even
for a temporary period and should not have been made unless
the action was absolutely necessary to avert a breach of peace.
But it was already seen that there was absolutely no justification
for apprehension of any breach of peace or danger to human life,
52
health or safety. The motive attributed to the respondents
(petitioners) for causing the alleged obstruction of flow of water
through their lands is to coerce Hussain Saheb into submission
and grab his lands as can be seen from the order in this case.
But even assuming that the respondents (petitioners) were
actuated by some such motive, it is unthinkable that their action
in obstructing the flow of water through their lands, even if true,
was such as would forthwith or in the near future lead to a
breach of peace by causing annoyance to the complainant. The
section does not confer arbitrary power and the power in
question being discretionary, should be used only when it
is really called for in order to prevent danger to human
life, health or safety or disturbance of public peace. But as
already stated, there is nothing in the impugned order
suggesting that the material available before the Sub-
Divisional Magistrate in this case was sufficient to justify
action under Sec. 144 Cr. P.C. and it must therefore, be
said that it is an order made without jurisdiction."
(Emphasis supplied)
13.3. The HIGH COURT OF BOMBAY in the case of
MANOHAR GAJANAN JOSHI v. S.B. KULKARNI, UPPER
DISTRICT MAGHISTRATE, AURANGABAD9 has held as follows:
".... .... ....
7. Article 19(1)(d) confers a fundamental rights upon the
citizens to move freely throughout the territory of India. Article
19(5) inter alia prescribes that confirmation of right will not
prevent the State from making any law imposing reasonahle
restrictions on the exercise of the right either in the interest of
the general public or for protection of the interests of Scheduled
Tribe. The provisions of section 144 of the Code encroaches
upon the fundamental right of the citizen to move freely
throughout the territory of India. Section 144 forms part of
Chapter X of the Code, which deals with "Maintenance of Public
9
1988 SCC OnLine Bom 250
53
Order and Tranquility", and the heading of section 144 is
"Urgent cases of nuisance or apprehended danger". Section
144(1) and of the Code reads as under:--
"144. (1) In cases where, in the opinion of a District
Magistrate, a Sub-divisional Magistrate or any other
Executive Magistrate specially empowered by the State
Government in this behalf, there is sufficient ground for
proceeding under this section and immediate prevention or
speedy remedy is desirable, such Magistrate may, by a
written order stating the material facts of the case and
served in the manner provided by section 134, direct any
person to abstain from a certain act or to take certain order
with respect to certain property in his possession or under
his management, if such Magistrate considers that such
direction is likely to prevent, or tends to prevent 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,"
8. The plain reading of this section makes it clear
that the powers can be exercised by the Magistrate
directing any person to abstain from a certain act,
provided the Magistrate finds sufficient ground for
proceeding under the section and immediate prevention
by speedy remedy is desirable. The section confers power
on the Magistrate with a view to prevent nuisance or
apprehended danger. Sub-section (4) of section 144 sets out
that no order under this section shall remain in force for more
than two months from the making thereof, and the order can be
extended to a period not exceeding six months provided the
State Government considers it necessary and issues a
notification to that effect. The power being preventive in nature,
obviously cannot remain in operation for a considerably long
time. Though sub-section (1) of section 144 does not specifically
provide that powers can be exercised by the District Magistrate
only after due notice to the person to be affected, provisions of
sub-section (2) and sub-sections (5), (6) and (7) make it crystal
clear that, that is the basic requirement before exercise of the
powers. Sub-section (2) provides that the District Magistrate
may in case of emergency or in cases where circumstances do
not admit of serving in due time of a notice upon the person
aggrieved, may pass order ex parte. Sub-sections (5) and (6)
enable the aggrieved person to apply to the Magistrate or the
State Government and request to rescind or alter any order
under this section. Sub-section (7) provides that Magistrate or
54
the State Government, where such an application is made, shall
afford to the applicant an early opportunity of being heard,
either in person or by pleader and showing cause against the
order.
9. The combined reading of sub-section (2) and sub-
sections (5), (6) and (7) leaves no manner of doubt that the
District Magistrate cannot exercise powers and restrain person
from entering in area without prior service of notice to show
cause. Indeed the service of a notice on a person to be
adversely affected is a basic requirement and also the principles
of natural justice and it is not necessary for the Legislature to so
specifically state in the section. The Legislature was fully
conscious that the District Magistrate may be required to
exercise the powers under section 144 in cases where the
situation is so emergent that the District Magistrate
cannot wait to give hearing to the person to be adversely
affected. There may also be cases where the person to be
adversely affected cannot be easily served with show
cause notice. In these kind of cases the Legislature has
conferred power on the District Magistrate to pass ex
parte orders. It is therefore obvious that an ex-
parte order can be passed provided the requirement of
sub-section (2) are satisfied and not only with a view to
bye pass the basic requirement of service of a show cause
notice on the person to be adversely affected it would be
colourable exercise of powers under sub-section (2) if the
anxiety is to deny right to the person to be adversly
affected to show cause to the proposed action it is
incumbent upon the District Magistrate to be satisfied
that the case is one of emergency and the cirumstances
do not admit of serving within due time show cause
notice upon the person against whom the order is to be
passed.
... ... ...
11. The criticism levelled by Shri Pradhan in respect of
exercise of powers under sub-section (2) of section 144 of the
Code on orders dated June 18, July 7 and July 22, 1988 is
justified. The perusal of order dated June 18, 1988 indicates
that there were no not on the date of passing of the order and in
fact situation was fast returning to normalcy. The only reason
given by the District Magistrate in the order is that the Shiv
Sena Organization had filed writ petition in High Court,
Aurangabad Bench, challenging the election of Mayor and
55
Deputy Mayor and the hearing is not over. The order dated July
7, 1988 refers to the dismissal of the petition and the alleged
press conference of Professor Madhok and the fact that Bakari-
Id and Ashadhi Ekadashi was being celebrated on July 25, 1988.
The order dated June 18, 1988 prevented the petitioner from
entering within the limits of Aurangabad District for a period of
12 days, while order dated July 7, 1988 restrained the petitioner
for a period of 20 days. The order dated July 22, 1988 was to
remain in operation for 14 days and therefore the three orders
together prevented the petitioner from entering Aurangabad
District for a period of one month and sixteen days. The
complaint of Shri Pradhan that exercise of powers under sub-
section (2) of section 144 of the Code while passing these three
orders was colourable is correct and deserves acceptance.
Neither the order nor the return filed by Shri S.B. Kulkarni,
Additional District Magistrate, Aurangabad, sworn on August 2,
1988 reflects as to how the situation was so emergent and the
time available was not enough to serve show cause notice on
the petitioner. It is not permissible to ignore the
requirement of service of notice before passing adverse
order against a citizen by taking resort to sub-section (2)
of section 144 and passing ex-parte orders Shri Barday
was unable to explain why it was not possible to serve
show cause notice on the petitioner and pass order under
sub-section (1) of section 144. The danger of permitting
the District Magistrate to pass ex parte orders one after
another under sub-section (2) is to enable the authority
to travel beyond the limits fixed by sub-section (4), that
the order shall not remain in force for more than two
months. The liberty to pass ex parte orders, one after
another, without the existence of requirement under sub-
section (2) would enable the District Magistrate to
contravene provisions of sub-section (4) and restrain a
citizen from entering certain area in excess of period of
two months. Exercise of such powers would therefore
obviously be colourable and misuse of the powers
conferred under section 144 of the Code. In the present
case, on the material placed before us on behalf of the State
Government, we have no hesitation in concluding that there was
no difficulty for the District Magistrate to serve show cause
notice on the petitioner before passing orders in June and July
1988, and therefore, resort to passing ex-parte orders under
sub-section (2) was clearly uncalled for. The District
Magistrate by passing these orders under sub-section (2)
56
has denied a substantive right to the petitioner to show
cause and therefore these three orders cannot be upheld.
Shri Barday suggested that it was open for the petitioner to
move the District Magistrate or the State Government against
these ex-parte orders under sub-section (5) or (6), but we are
unable to see any merit in the submission. The mere fact that
the petitioner had a remedy to approach the District
Magistrate is no answer to the complaint that the
exercise of powers under sub-section (2) was wholly
incorrect. It cannot be contended that the District
Magistrate would exercise powers when there is no
occasion to do so, and then the person adversely affected
had no remedy to complain against that order, but only to
go back to the District Magistrate and request him to alter
or rescind the same. The aggrieved citizen is entitled to
approach this Court and complain that the District
Magistrate has exercised powers malafide and without
satisfying that the conditions to pass ex parte orders
existed. The three orders dated June 18, July 7 and July 22,
1988, therefore, are clearly illegal and without jurisdiction and
are required to be struck down."
(Emphasis supplied)
13.4. The HIGH COURT OF KERALA in the case of
UMMULKULUS v. EXECUTIVE MAGISTRATE10 has held as
follows:
"5. S. 144 of the Crl. P.C. gives wide power among
others to the Executive Magistrate specially empowered
by the State Government. In cases where, in the opinion
of a Sub Divisional Magistrate or any other Executive
Magistrate specially empowered by the State Government
in that behalf, there is sufficient ground for proceeding
under the section and immediate prevention or speedy
remedy is desirable, such Magistrate may, by a written
order stating the material facts of the case direct any
person to abstain from certain acts, if he considers that
10
1990 SCC OnLine Ker.409
57
such direction is likely to prevent, or tends to prevent,
obstruction, annoyance or injury to any person lawfully
employed, or danger to human life, health or safety, or a
disturbance of the public tranquillity, or a riot, or an
affray. The section empowers the Magistrate to take
action in urgent cases. He gets jurisdiction if he is
satisfied that an immediate prevention or speedy remedy
is desirable. His opinion as to the existence or sufficient
ground for proceeding under section is the foundation for
the proceedings and the satisfaction that the direction is
needed to prevent nuisance or disturbance of public
tranquillity is the requisite of the section. The Magistrate
should resort to S. 144 only if there is no time or
opportunity for any other course. The order must set out
the material facts of the case. But if there are materials on
the record justifying such an order, the order will not be
vitiated. The Magistrate, no doubt, should not usurp the
functions of a civil court. But the Magistrate will not be
precluded from considering the nature of the claims set up by
the parties. Sub-section (2) of S. 144 states that in cases
of emergency or in cases where the circumstances do not
permit of the serving in due time of a notice upon the
person against whom the order is directed, orders can be
passed ex-para"
(Emphasis supplied)
13.5. The HIGH COURT OF ALLAHABAD, in the case of,
KISHAN LAL CHOUHAN v. STATE OF U.P.11, has held as follows:
"23. The main tenor of the argument of the State is that
the Magistrate is to be subjectively satisfied for initiating a
proceeding under Section 144 Cr. P.C. and once that satisfaction
is arrived at on the basis of reports the same is not to be
interfered with as it was an executive order and not a judicial or
quasi-judicial order. It was further stated that when alternative
remedies were available to challenge the order the extraordinary
and inherent powers would not be exercised. In this context the
case laws have already been referred and although the Supreme
11
1998 SCC OnLine All 662
58
court had ruled that the order recorded under Section 144 Cr.
P.C. is neither judicial nor quasi-judicial, it had also observed
that the power under Section 144 Cr. P.C. was to be exercised
by senior Magistrates who have to set down the material facts,
in other words to make an enquiry in exercise of judicial power
with reason for the order. Section 482 Cr. P.C. provides exercise
of the inherent powers to make such orders as may be
necessary:
(1) to give effect to any order under the Code,
(2) to prevent abuse of the process of any court, and
(3) otherwise to secure the ends of Justice.
24. We may confine to the second aspect, i.e. to
prevent abuse of the process, of any court. It is true that
the new Cr. P.C. of 1973 separates the powers between
the executive and the Judiciary and in that sense, as
observed by the Supreme court, the functions of the
Magistrates are police functions in recording an order
under Section 144 Cr. P.C. But under the frame of the Cr.
P.C., in Chapter II, the executive Magistrates also form a
class of criminal courts. Thus, when an action under the
Code, to be precise under Section 144 Cr. P.C. is taken by
an executive Magistrate, it is an order by a court and by
norm and practice and by law as well we have kept those
orders open to revision before a competent Court. Thus
the order recorded by a Magistrate for action under
Section 144 Cr. P.C. is always open to judicial scrutiny by
all higher courts, and that was precisely stated by the
Supreme Court in paragraph 29 of Madhu Limay's case.
25. This Section 144 Cr. P.C. appears in Chapter X
covering maintenance of public order and tranquility and
in part C thereof this Section is the only provision under
the heading of "urgent cases of nuisance or apprehended
danger". The language also speaks that in cases where in
the opinion of the executive Magistrate there is sufficient
ground for proceeding under this Section and immediate
prevention or speedy remedy is desirable such Magistrate
may by an urgent order stating the material facts of the
case direct any person to abstain from certain act or to
take certain order with respect to certain property in his
possession or under his management, if such Magistrate
59
considers that such direction is likely to prevent or tends
to prevent obstruction, annoyance or injury to any person
lawfully employed or danger to human life, health or
safety or a disturbance of public tranquility, riot or affray.
26. The Magistrate is certainly to form his opinion
before proceeding under this section. The opinion or
satisfaction may not be a subjective one as the section
itself requires that there should be sufficient ground and
the Magistrate is to state the material facts of the case.
Together with these requirements, there is the scope of
judicial review by higher courts and that suggests that
the opinion or satisfaction cannot but be objective. It is
the urgency of a case of apprehended danger that gives a
jurisdiction to a Magistrate to proceed under Section 144
Cr. P.C. and not a remote probability of apprehension of
breach of peace or a farfetched link between the action
prohibited and a probable breach of peace.
27. If there be a lack of material to read this
urgency from the face of the averments, certainly the
Magistrate will be deemed not to have a jurisdiction under
this section. Once the order suffers from initial lack of
jurisdiction, it must be open to intervention under Section 482
Cr. P.C. despite there being avenues for getting it rescinded. The
powers under Section 144(5)(6) could be invoked when there is
an order within the jurisdiction but when an order is without
jurisdiction the powers under Section 482 Cr. P.C. cannot be
barred simply for existence of an alternative remedy."
(Emphasis supplied)
13.6. The HIGH COURT OF GAUHATI in the case of
PREMODA MEDHI v. GAUHATI ROLLER FLOUR MILLS
LIMITED12, has held as follows:
"8. It is settled law that the Magistrate is
authorised to act under section 144(1) and (2) Cr.P.C.
12
2002 SCC OnLine Gau.237
60
only when he is satisfied as regards the existence of such
emergent or urgent circumstances and such urgency
must be reflected in the order itself with reasons thereof.
A mere statement that he is satisfied that there is every
possibility for serious breach or peace between the
parties as well as public tranquility, is not sufficient to
exercise power under section 144(1) and (2) of the
Cr.P.C. A duty is cast upon the Magistrate to project the
factual situation pertaining to urgent and emergent
circumstances in rendering the ex-parte order."
(Emphasis supplied)
13.7. Again, the HIGH COURT OF ALLAHABAD in the case
of D.S. JOSEPH V. STATE OF U.P.13, has held as follows:
".... .... ....
6. Furthermore, there must be an objective basis and
concrete material before the City Magistrate to reach his
conclusion that public order was threatened in respect of both
the issues which constitute the basis of this order. One, that
there was a dispute between the two Christaian bodies, i.e. the
Church situated in the Mission Compound and the Mount Carmel
school. In this connection in the affidavit filed by the petitioner in
support of this Criminal Revision, the petitioner has stated that
there was no civil or criminal dispute or litigation of any kind
between the Mission Compound Church and Mount Carmel
School. Two, there must be objective material that one of the
bodies was engaging in unlawful conversions. This decision
could not be based on the mere ipse dixit, subjective
impression or surmises of a particular police officer or
other official. Subject to reasonable restrictions which can
be made by law for maintaining public order and for some
other objectives such as maintaining the sovereignty and
integrity of India, decency or morality, Article 19(1)(b) of
13
2004 SCC OnLine All 2061
61
the Constitution gives all citizens a right to assemble
peaceably and without arms.
.... .... ....
12. However, there must be specific allegations and
objective basis before the City Magistrate for reaching the
conclusion that there has been an attempt at forcible or
fraudulent conversions, and it should never be passed only in
response to the exaggerated susceptibilities of organisations
sponsoring a particular philosophy that they do are resentful of
the practice or profession of their religion by members of another
religion, and the public order must actually have been
threatened because of the wrong doings of the believers of a
particular faith, and not because of the unjustified response of
another group. Such an order should never be passed on the
mere opinion evidence of officials or individuals who may be
entertaining certain prejudicies.
13. The City Magistrate could also consider whether
it would be appropriate to pass the extreme order under
Section 144, CrPC of preventing the concerned persons
from assembling in numbers of five or more, or whether
the lesser expedient of binding over quarrelling factions
to maintain the peace would not suffice.
14. It should be remembered that this order was
passed ex parte, without any opportunity or notice to the
parties. The order itself observes that the police report
was dated 5-8-2004, yet the order under Section 144,
CrPC was passed after 14 days on 19-8-2004. The order
does not indicate any fresh emergency or incident after 5-
8-2004 justifying passage of the order on 19-8-2004
without giving any notice or opportunity to the affected
parties, which was to remain in force for a month."
(Emphasis supplied)
62
13.8. Again, the HIGH COURT OF BOMBAY in the case of
JOAN MASCARENHAS E D'SOUZA V. STATE OF GOA14, has held
as follows:
"13. The main questions raised in this petition are as under:
(a) Whether there was any material before the
District Magistrate which could form the basis for
exercising jurisdiction under Section 144 CrPC for
passing the impugned order?
(b) On the assumption that there was enough of
material against the petitioner and Domnic to exercise
jurisdiction under Section 144 CrPC, whether the
District Magistrate was within his jurisdiction bounds
in passing the order to curb religious conversions or
direct the petitioner to abstain from engaging in
religious conversions as was done in the impugned
order?
(c) Whether the impugned order is in violation of
the principles of natural justice and passed in violation
of the petitioner's fundamental rights under Articles
19(1), 25 and 26 of the Constitution of India?
...... ...... ......
16. The provision forms part of Chapter 10 of the Code
which deals with maintenance of public order and
tranquillity. Sub-section (1) of Section 144 requires the
District Magistrate, whilst passing a written order, to state
the material facts of the case, and the basis on which the
Magistrate considers that directions are required to be
issued against a person or group of people to prevent
danger to human life, health, safety or a disturbance of
public tranquillity or right.
17. As mandated by sub-section (1) of Section 144,
there appears to be no live material placed before the
District Magistrate when passing the impugned order, much
less material on the basis of which any conclusion could be
drawn that recent acts of the petitioner could have resulted
in disturbance of public tranquillity or caused a riot.
14
2023 SCC OnLine Bom 1055
63
18. Sub-section (2) of Section 144 empowers the
Magistrate to pass such an order ex parte, only in case of
emergency or in a case where the circumstances do not
admit of serving in due time a notice upon the person
against whom such order is directed.
19. The impugned order does not make any reference to
any incident or any material before the District Magistrate
which was of emergent nature or which spelt out
circumstances on the basis of which the District Magistrate
could exercise jurisdiction under sub-section (2) of Section
144 to directly issue the order ex parte.
20. In the present case, the impugned order was passed,
admittedly, without giving the petitioner any hearing, or affording
her an opportunity of placing on record the material which has
now been placed before us. The material placed before us in this
petition, which includes details of cases from the year 2009 till
2022 against the petitioner and her husband Domnic, which have
either ended in acquittal/discharge or filing of C summary reports,
if were considered by the District Magistrate, would have obviously
resulted in the District Magistrate refraining from passing the
impugned order. There was clearly no material before the District
Magistrate to proceed in terms of the provisions of Section 144 to
record any subjective satisfaction. The impugned order is,
therefore, passed contrary to the provisions of Section 144.
21. On the second question, clearly, there being no
material-on-record of the District Magistrate to enable him
to proceed under Section 144 of the Code, he would have
no jurisdiction to exercise powers under that provision. A
reading of the provisions of Section 144 of the Code would
require certain facts to be placed before the District
Magistrate which may be referred to as jurisdictional facts,
to enable him to proceed to arrive at his subjective
satisfaction that such facts would lead to disturbance of
public tranquillity. There being no material of this nature on
record, the impugned order was clearly one which was
passed without jurisdiction and is, therefore, contrary to
Section 144 of the Code.
64
22. We take note of the fact that there has been a
tendency of late for the authorities to abuse and misuse the
powers vested in them under the provisions of Section 144
of the Code, by passing preventive orders either concocted
material or on the basis of reports which actually do not
spell out any factual basis for exercising jurisdiction under
Section 144 of the Code.
23. Whilst dealing with the scope of the provision of Section
144 of the Code and the exceptional nature of the provision of
Section 144 of the Code, the Supreme Court in Ramlila Maidan
Incident, In re [Ramlila Maidan Incident, In re, (2012) 5 SCC
1 : (2012) 2 SCC (Civ) 820 : (2012) 2 SCC (Cri) 241 : (2012) 1
SCC (L&S) 810] , has observed as under: (SCC pp. 90-91 and 94,
paras 210, 212 and 225)
"210. The order passed under Section 144CrPC does not give
any material facts or such compelling circumstances that would
justify the passing of such an order at 11.30 p.m. on 4-6-2011.
There should have existed some exceptional circumstances which
reflected a clear and prominent threat to public order and public
tranquillity for the authorities to pass orders of withdrawal of
permission at 9.30 p.m. on 4-6-2011. What weighed so heavily
with the authorities so as to compel them to exercise such drastic
powers in the late hours of the night and disperse the sleeping
persons with the use of force, remains a matter of guess. Whatever
circumstances have been detailed in the affidavit are, what had
already been considered by the authorities concerned right from
25-5-2011 to 3-6-2011 and directions in that behalf had been
issued. Exercise of such power, declining the permission has to be
in rare and exceptional circumstances, as in the normal course, the
State would aid the exercise of fundamental rights rather than
frustrating them.
***
212. There is some substance in this submission of Mr Ram
Jethmalani. It is clear from Annexure 'J' annexed to the affidavit of
the Police Commissioner that the letter of the Joint Deputy Director
dated 3-6-2011 referring to threat on Baba Ramdev and asking the
police to review and strengthen the security arrangements, was
actually received on 6-6-2011 in the office of the Commissioner of
Police and on 7-6-2011 in the office of the Joint Commissioner of
Police. Thus, it could be reasonably inferred that this input was not
within the knowledge of the officer concerned. I do not rule out the
possibility of the intelligence sources having communicated this
input to the police authorities otherwise than in writing as well. But
that would not make much of a difference for the reason that as
already held, the order under Section 144CrPC does not contain
65
material facts and it is also evident from the bare reading of the
order that it did not direct Baba Ramdev or Respondent 4 to take
certain actions or not take certain actions which is not only the
purpose but is also the object of passing an order under Section
144CrPC.
***
225. There is some merit in the submissions of the learned
amicus curiae. Existence of sufficient ground is the sine qua non for
invoking the power vested in the executive under Section 144CrPC.
It is a very onerous duty that is cast upon the empowered officer
by the legislature. The perception of threat should be real and not
imaginary or a mere likely possibility. The test laid down in this
section is not that of 'merely likelihood or tendency'. The
legislature, in its wisdom, has empowered an officer of the
executive to discharge this duty with great caution, as the power
extends to placing a restriction and in certain situations, even a
prohibition, on the exercise of the fundamental right to freedom of
speech and expression. Thus, in case of a mere apprehension,
without any material facts to indicate that the apprehension is
imminent and genuine, it may not be proper for the authorities to
place such a restriction upon the rights of the citizen."
24. The observations of the Supreme Court in Ramlila Maidan
case [Ramlila Maidan Incident, In re, (2012) 5 SCC 1 : (2012) 2
SCC (Civ) 820 : (2012) 2 SCC (Cri) 241 : (2012) 1 SCC (L&S)
810] quite clearly set out that the existence of sufficient
grounds to proceed is sine qua non for invocation of the
powers vested under Section 144 of the Code, and mere
likelihood or tendency that an incident might occur, does
not empower an officer of the executive to proceed under
those provisions. It was further held that a mere
apprehension without any material facts to indicate that
the apprehension is imminent would not permit a District
Magistrate to invoke jurisdiction under Section 144 of the
Code as the powers vested under that provision casts upon
the Magistrate a onerous duty to balance the jurisdiction
vested under the provision, with the rights guaranteed to
the citizen of freedom of speech, gathering and propagating
his thoughts and religion.
25. Whilst discussing the powers vested in a District Magistrate
under Chapter 10 of the Code, the Supreme Court in Ramlila
Maidan case [Ramlila Maidan Incident, In re, (2012) 5 SCC
1 : (2012) 2 SCC (Civ) 820 : (2012) 2 SCC (Cri) 241 : (2012) 1
SCC (L&S) 810] has further held as under: (SCC pp. 39-40, paras
44 and 45)
66
"44. The distinction between 'public order' and 'law and order' is
a fine one, but nevertheless clear. A restriction imposed with 'law
and order' in mind would be least intruding into the guaranteed
freedom while 'public order' may qualify for a greater degree of
restriction since public order is a matter of even greater social
concern. Out of all expressions used in this regard, as discussed in
the earlier part of this judgment, 'security of the State' is the
paramount and the State can impose restrictions upon the
freedom, which may comparatively be more stringent than those
imposed in relation to maintenance of 'public order' and 'law and
order'. However stringent may these restrictions be, they must
stand the test of 'reasonability'. The State would have to satisfy the
court that the imposition of such restrictions is not only in the
interest of the security of the State but is also within the framework
of Articles 19(2) and 19(3) of the Constitution.
45. It is keeping this distinction in mind, the legislature, under
Section 144CrPC, has empowered the District Magistrate, Sub-
Divisional Magistrate or any other Executive Magistrate, specially
empowered in this behalf, to direct any person to abstain from
doing a certain act or to take action as directed, where sufficient
ground for proceeding under this section exists and immediate
prevention and/or speedy remedy is desirable. By virtue of Section
144-ACrPC, which itself was introduced by Act 25 of 2005 [Ed.: The
Code of Criminal Procedure (Amendment) Act, 2005], the District
Magistrate has been empowered to pass an order prohibiting, in
any area within the local limits of his jurisdiction, the carrying of
arms in any procession or the organising or holding of any mass
drill or mass training with arms in any public place, where it is
necessary for him to do so for the preservation of public peace,
public safety or maintenance of public order. Section 144CrPC,
therefore, empowers an executive authority, backed by these
provisions, to impose reasonable restrictions vis-à-vis the
fundamental rights. The provisions of Section 144CrPC provide for a
complete mechanism to be followed by the Magistrate concerned
and also specify the limitation of time till when such an order may
remain in force. It also prescribes the circumstances that are
required to be taken into consideration by the said authority while
passing an order under Section 144CrPC."
26. In the present case, there was no material before
the District Magistrate placed by the Superintendent of
Police to enable him to come to a conclusion that there was
any situation of public order envisaged by the acts
allegedly committed by the petitioner, for passing
prohibition orders under Section 144 of the Code. The
reports placed before us, do not spell out any sufficient
67
grounds to proceed under this section, much less, arm the
District Magistrate with the jurisdictional facts to proceed
to pass any prohibitory/preventive orders against the
petitioner.
27. Question no. 3 deals with the submission that the
impugned order was passed in violation of the principles of natural
justice, by denying the petitioner any right of hearing before the
order was passed. Admittedly, the petitioner was not heard
before the impugned order was passed. The impugned
order also does not refer to any material on the basis of
which, the District Magistrate could conclude that there
was an emergency or that this was a case where
circumstances were made out in which delay in service of
notice upon the petitioner would defeat the very purpose of
passing the preventive order. There is no reference made in
the order setting out reasons for the exercise of the powers
vested in a District Magistrate under sub-section (2) of
Section 144. There is also no date set out in the order to
grant the petitioner any hearing. Clearly, therefore, the
impugned order is violative of the principles of natural
justice as it was passed without affording the petitioner
any opportunity of rebutting the allegations or dealing with
the contents of the report on the basis of which the same
came to be passed.
28. We now come to the forth question as to whether,
irrespective of the jurisdiction of the Magistrate to act
under Section 144 of the Code, passing of the impugned
order in the nature of banning of the petitioner and her
husband Domnic D'Souza from carrying out religious
activities in their private space in House No. 302/4 would
militate against petitioner's fundamental rights guaranteed
under Articles 19(1), 25 and 26 of the Constitution of India.
29. Article 25 of the Constitution of India deals with the right
to freedom of religion and reads thus:
"25. Freedom of conscience and free profession, practice and
propagation of religion.--
(1) Subject to public order, morality and health and to the other
provisions of this part, all persons are equally entitled to freedom of
conscience and the right freely to profess, practise and propagate
religion.
68
(2) Nothing in this article shall affect the operation of any
existing law or prevent the State from making any law--
(a) regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious
practice; and
(b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes and
sections of Hindus.
Explanation I.-- The wearing and carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion.
Explanation II.-- In sub-clause (b) of clause reference to Hindus
shall be construed as including a reference to persons professing
the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly."
30. Article 26 of the Constitution of India confers on religious
section or denomination the rights to establish religious institution
and to acquire and administer property for that purpose. Article 26
reads as follows:
"26. Freedom to manage religious affairs.--
Subject to public order, morality and healthy every religious
denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and
charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
31. The article guarantees to all persons, the equal
entitlement of freedom of conscience and the right to
profess, practice and propagate religion. The right
conferred upon a citizen to profess and propagate religion
correspondingly casts a duty on the State and the executive
to ensure that every person should be allowed to freely
practise, preach or profess his belief. The State has a duty
to extend all possible protection to its citizens, through free
speech and the freedom of expression, enshrined in Article
19(1) of the Constitution of India to indulge in public
discourse and to propagate religious practice. All persons
have a fundamental right to form institution, purchase
property for their use and to profess and propagate
religion.
32. In State of W.B. v. Jagadishwarananda Avadhuta [State of
W.B. v. Jagadishwarananda Avadhuta, (2004) 12 SCC 770] ,
69
whilst dealing with the question as to what would be the true
meaning of professing, practicing and propagating religion, the
Supreme Court has held thus: (SCC pp. 805-807, paras 85, 86, 87
and 88)
"85. Religion is a social system in the name of God laying down
the code of conduct for the people in society. Religion is a way of
life in India and it is an unending discovery into the unknown world.
People living in society have to follow some sort of religion. It is a
social institution and society accepts religion in a form which it can
easily practise. George Bernard Shaw stated, 'There is nothing that
people do not believe if only it be presented to them as science and
nothing they will not disbelieve if it is presented to them as
religion.' Essentially, religion is based on 'faith'. Some critics say
that religion interferes with science and faith. They say that religion
leads to the growth of blind faith, magic, sorcery, human sacrifices,
etc. No doubt, the history of religion shows some indications in this
direction but both science and religion believe in faith. Faith in
religion influences the temperament and attitude of the thinker.
Ancient civilisation viz. the Indus Valley Civilisation shows faith of
people in Siva and Sakthi. The period of Indus Valley Civilisation
was fundamental religion and was as old as at least the Egyptian
and Mesopotamian cultures. People worship Siva and the trishul
(trident), the emblem of Siva which was engraved on several seals.
People also worshipped stones, trees, animals and fire. Besides,
worship of stones, trees, animals, etc. by the primitive religious
tribes shows that animism viz. worship of trees, stones, animals
was practised on the strong belief that they were abodes of spirits,
good or evil. Modern Hinduism to some extent includes Indus Valley
Civilisation culture and religious faith. Lord Siva is worshipped in
the form of linga. Many symbols have been used in Hindu
literature. Different kinds of symbols and images have different
sanctity. Baring of chest, arms and other parts of body represent
the weapons of symbols of Siva. Modern Hinduism has adopted and
assimilated various religious beliefs of primitive tribes and people.
The process of worship has undergone various changes from time
to time.
86. The expression 'religion' has not been defined in the
Constitution and it is incapable of specific and precise definition.
Article 25 of the Constitution guarantees to every person, freedom
of conscience and right freely to profess, practise and propagate
religion. No doubt, this right is subject to public order related to
health and morality and other provisions relating to fundamental
right. Religion includes worship, faith and extends to even rituals.
Belief in religion is belief in practising a particular faith, to preach
and to profess it. Mode of worship is an integral part of religion.
Forms and observances of religion may extend to matters of food
and dress. An act done in furtherance of religion is protected. A
person believing in a particular religion has to express his belief in
70
such acts which he thinks proper and to propagate his religion. It is
settled law that protection under Articles 25 and 26 of the
Constitution extends guarantee for rituals and observances,
ceremonies and modes of worship which form part and parcel of
religion. Practice becomes part of religion only if such practice is
found to be an essential and integral part. It is only those practices
which are integral part of religion that are protected. What would
constitute an essential part of religion or religious practice is to be
determined with reference to the doctrine of a particular religion
which includes practices which are regarded by the community as
part and parcel of that religion. Test has to be applied by courts
whether a particular religious practice is regarded by the
community practising that particular practice as an integral part of
the religion or not. It is also necessary to decide whether the
particular practice is religious in character or not and whether the
same can be regarded as an integral or essential part of religion,
which has to be decided based on evidence.
87. It is not uncommon to find that those (sic) delve deep into
scriptures to ascertain the character and status of a particular
practice. It has been authoritatively laid down that cow sacrifice is
not an obligatory over act for a Muslim to exhibit his religious
belief. No fundamental right can be claimed to insist on slaughter of
a healthy cow on Bakrid day. Performance of 'sharadha' and
offering of 'pinda' to ancestors are held to be an integral part of
Hindu religion and religious practice. Carrying 'trishul' or 'trident'
and 'skull' by a few in a procession to be taken out by a particular
community following a particular religion is by itself an integral part
of religion. When persons following a particular religion carry
trishul, conch or skull in a procession, they merely practise that
which is part of their religion which they want to propagate by
carrying symbols of their religion such as trishul, conch, etc. If the
conscience of a particular community has treated a particular
practice as an integral or essential part of religion, the same is
protected by Articles 25 and 26 of the Constitution.
88. Therefore, Ananda Margis have the right to take out a
procession in public places after obtaining necessary permission
from the authorities concerned and they are also entitled to carry
trishul or trident, conch or skull so long as such procession is
peaceful and does not offend the religious sentiments of other
people who equally enjoy the fundamental right to exercise their
religious freedom. An Ananda Margi is entitled to transmit or spread
religion by taking out procession in public places and also carry
trishul, conch or skull. However, any religious right is subject to
public order. The State has got ample powers to regulate the
secular activities associated with religious practices. Religious
activities are protected under Article 25 of the Constitution. No
doubt, such religious freedom is subject to health and subject to
71
laws made for social welfare. Every person has got the right to
follow, practise and propagate his religion."
33. On a reading of the material-on-record, we find no
complaint or any reference to any act of the petitioner
which would amount to using force, coercion or deception
to convert any members of the public to a particular
religion. The impugned order, other than making reference
to the material considered by us in the earlier paragraphs,
does not cite a single incident or particulars of forced
conversion being indulged in by the petitioner. In any
event, if such was the allegation on a complaint before the
police authorities, there are other penal laws that could
deal with such complaints against the petitioner, and that
by itself could not be a cause for the District Magistrate to
exercise jurisdiction under Section 144 of the Code. The
conclusion that the petitioner and her husband are carrying
out religious activities which have raised communal tension
in the village or that they are involved in religious
conversion by means of allurement or fraud, appears to be
totally baseless, not founded upon any material-on-record
and can, therefore, not form the basis for any subjective
opinion that the acts of the petitioner would cause a
disturbance of public tranquillity or be a matter of public
order. The petitioner and her husband Domnic are within
their rights to propagate their own religion and to profess it
in any manner that they please though within the bounds of
law, more so, when it is within their own private property.
We are of the opinion, that by claiming to exercise
jurisdiction under Section 144 of the Code and prohibiting
the petitioner and Domnic from carrying out any religious
activities in their property under Survey No. 221/8-A and
House No. 302/4 at Tropawaddo, Sodiem, Siolim, is a direct
violation of their fundamental rights enshrined in Articles
19(1), 25 and 26 of the Constitution of India, as it seeks to
deny them both of their freedom of speech and expression
and to their freedom of conscience and the right to freely
profess, practice, propagate their religion or form religious
institutions.
34. Since the impugned order is in direct breach of the
petitioner's fundamental rights, we are of the considered
opinion that even if the petitioner had an alternate remedy
at law, there would be no fetters placed upon this Court
72
from exercising its jurisdiction under Article 226 of the
Constitution of India to protect and uphold the petitioner's
fundamental rights, which have been clearly breached by
the passing of the impugned order.
35. Merely because the impugned order would have a validity
of two months from the date it was passed, considering that it is
in direct infringement of the petitioner's fundamental rights, the
same is required to be specifically quashed and set aside, and
cannot be considered to have been worked out, merely by the
efflux of the period for which it would be valid."
(Emphasis supplied)
13.9. Yet again, the HIGH COURT OF ALLAHABAD in the
case of RAJPUTANA REALTY (P) LTD. V. STATE OF W.B.15, has
held as follows:
"34. The object of the provisions of Section 144 of the Cr.
P.C. is to invoke only in grave circumstances for
maintenance of public peace. The efficacy of this provision
is to prevent some harmful occurrence immediately and
therefore, the emergency must be sudden and the
consequence sufficiently grave. The provision of Section
144 cannot be resorted to merely on imaginary or likely
possibility or likelihood or tendency of a threat, as the
executive power, to cause a restriction on a Constitutional
right within the scope of Section 144 of the Cr. P.C. has to
be used is sparingly and very cautiously."
(Emphasis supplied)
13.10. All the afore-quoted judgments of different High Courts
would in one singular voice hold that urgent cases of nuisance or
apprehended danger and the need for maintenance of public order
15
2024 SCC OnLine Cal 5577
73
and tranquillity are the most imperative factors to pass an order
under Section 144 of the Cr.P.C.
13.11. In all those cases, particularly that of the High Court of
Bombay in the case of MANOHAR GAJANAN JOSHI supra, the
petitioner was prohibited from entering the District for a period of 10
days but still it was quashed on the ground that it did not depict any
emergent situation. In the case at hand as well, if the impugned
order as quoted hereinabove is noticed, it is passed for a period of
two months. It is not only excessive but neither records any
emergency due to which no notice could be issued to the petitioner.
It was not that it had to be passed on the spur of the moment owing
to an emergency.
13.12. Further, in the case of JOAN MASCARENHAS supra,
the High Court of Bombay while quashing an order passed under
Section 144 of the Cr.P.C. particularly takes note of the fact that
there has been a growing tendency of the State authorities to
misuse and abuse the powers vested in them under the provisions
of Section 144 of the Cr.P.C., by passing preventive orders on either
concocted material or on the basis of reports which actually do not
74
spell out any factual basis for exercising jurisdiction under Section
144 of the Code. The Bombay High Court also holds that the right
conferred upon a citizen to profess and propagate religion
correspondingly casts a duty on the State and the executive to
ensure that every person should be allowed to freely practise,
preach or profess his belief. The State has a duty to extend all
possible protection to its citizens, through free speech and the
freedom of expression, enshrined in Article 19(1) of the Constitution
of India to indulge in public discourse and to propagate religious
practice. All persons have a fundamental right to form institution,
purchase property for their use and to profess and propagate
religion. However, all hedged by reasonable restrictions.
14. The representation was submitted on 30th October, 2025.
The order is passed on 04.11.2025. Therefore, 96 hours was
available to issue a notice to the petitioner. A perusal of the order
nowhere indicates any emergent situation that is going to create
breach of peace and public tranquillity. Section 144 of the Cr.P.C. is
an extraordinary power that can even be exercised ex-parte but it
can be only on an emergent situation and on the basis of an
apprehension in real time and not imaginary. The HIGH COURT OF
75
ORISSA in the case of SWAMI ADHOKSHAJANANDA THIRTHJI
v. STATE OF ORISSA16, has held as follows:
".... .... ....
11. The writ petitioner has assailed the impugned order u/s.
144, Cr. P.C. mainly on the following grounds:
(i) The apprehension recorded in the impugned order
is wholly imaginary, without basis, partisan and
not bona fide.
(ii) The impugned order has been passed at the
behest of Collector, Puri who has a bias and
motive against the peti-tioner.
(iii) Assuming that the apprehension as recorded is
reasonable the restriction imposed is
disproportionate to the apprehension expressed.
(iv) The impugned order was passed ex parte without
giving any opportunity of hearing to the
petitioner. Even after the impugned order no
post-decision opportunity of hearing was given.
The impugned order is thus violative of the
accepted principles of natural justice.
(v) Admittedly, whenever the petitioner wants to
come to Puri prohibitory order u/s. 144, Cr. P.C.
is being invariably issued to prevent him from
staying at Puri and such successive orders u/s.
144, Cr. P.C. is not permissible and the same
shows malice on the part of the administration
towards the petitioner.
12. Principles relating to the nature of the power u/s. 144,
Cr. P.C. and exercise thereof have been settled. As far back as in
1883 when India was under colonial rule and there was no
Constitution guaranteeing fundamental rights, a Full Bench of
Madras High Court observed
16
2000 SCC Online Ori 235
76
"I must nevertheless observe that this power (to
suspend the exercise of legal rights on being satisfied about
the existence of an emergency) is extraordinary and that
the Magistrate should resort to it only when he is satisfied
that other powers with which he is entrusted are
insufficient. Where rights are threatened, the persons
entitled to them should receive the fullest protection the
law affords them and circumstances admit of. It needs no
argument to prove that the authority of the Magistrate
should be exerted in the defence of rights rather than in
their suspension; in the repression of illegal rather than in
interference with lawful acts. If the Magistrate is satisfied
that the exercise of a right is likely to create a riot, he can
hardly be ignorant of the persons from whom disturbance is
to be apprehended, and it is his duty to take from them
security to keep the peace."
13. The said observations of the Madras High Court was
approvingly quoted by the Supreme Court by Gulam
Abbas v. State of U.P. reported in (1982) 1 SCC 71 : A.I.R., 1981
S.C. 2198.
14. In 1932, Calcutta High Court in Francis Duke Cobridge
Sumner, Offg. Deputy Secretary, Port Commissioner,
Calcutta v. Jogendra Kumar Roy repotted in A.I.R. 1933 Calcutta
348, observed:--
"......Now there can be no doubt or dispute that the
legislature by S. 144 of the Code has conferred very large
powers upon Magistrates who have to deal with urgent
cases of nuisance or apprehended danger xxxxxxxxx The
larger is the power, the greater is the necessity to be
cautious about its exercise. The statute itself has provided a
safeguard in the shape of a time limit. Judicial decisions
have also laid down certain principles which have to be
borne in mind, and of these only a few may be mentioned
here; Courts, civil as well as criminal, exist for the
protection of rights, and therefore the authority of a
Magistrate should ordinarily be exercised in defence of
rights rather than in their suppression; when an order in
suppression of lawful rights have to be made it ought not to
be made unless the Magistrate considers that other action
that he is competent to take is not likely to be effective; and
the order, if made, should never be disproportionate to but
should always be, as far as possible, commensurate with
the exigencies of any particular situation."
77
15. In Gulam Abbas (supra) the Supreme Court has
explained the nature of the power u/s. 144, Cr. P.C. and
has laid down certain salient principles required to be
observed at the time of exercise of the powers. The
Supreme Court has said therein:
"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 emergent
situations and as such it may become necessary for the
Executive Magistrate to override temporarily private rights
and in a given situation the power must extend to
restraining individuals from doing acts perfectly lawful in
themselves, for, it is obvious that when there is a conflict
between the public interest and private rights the former
must prevail. It is further well settled that the section does
not confer any power on the Executive Magistrate to
adjudicate or decide disputes of civil nature or question of
title to properties or entitlements to rights but at the same
time in cases where such disputes or titles or entitlements
to rights have already been adjudi-cated and have become
the subject-matter of judicial pronouncements and decrees
of Civil Courts of competent jurisdiction then in the exercise
of his power under sec-tion 144 he must have due regard to
such established rights and subject of course to the
paramount considera-tion of maintenance of public peace
and tranquility the exercise of power must be in aid of
those rights and against those who interfere with the lawful
exercise thereof and even in cases where there are no
declared or established rights the power should not be
exercised in a manner that would give material advantage
to one party to the dispute over the other but in a fair
manner ordi-narily in defence of legal rights, if there be
such and the lawful exercise thereof rather than in
suppressing them. In other words, the Magistrate's action
should be directed against the wrong-doer rather than the
wronged. Further-more, it would not be a proper exercise of
discretion on the part of the Executive Magistrate to
interfere with the lawful exercise of the right by a party on
a considera-tion that those who threaten to interfere
constitute a large majority and it would be more convenient
for the administration to impose restrictions which would
affect only a minor section of the community rather than
prevent a larger section more vociferous and militant." The
Supreme Court has also unequivocally disapproved passing
of successive orders u/s. 144, Cr. P.C.. In Acharya
Jagdishwarananda Avadhuta v. Commissioner of Police,
78
Calcutta, reported in (1983) 4 SCC 522 : A.I.R. 1984 S.C. 51
the Supreme Court has referred to various decisions of
different High Courts and concluded:
"We have no doubt that the ratio of these decisions
represents a correct statement of the legal position. The proviso to
sub-section (4) of section 144 which gives the State Government
jurisdiction to extend the prohibitory order for a maximum period of
six months beyond the life of the order made by the Magistrate is
clearly indica-tive or the position that Parliament never intended the
life of an order under section 144 of the Code to remain in force
beyond two months when made by a Magistrate. The scheme of
that section does not contemplate repeti-tive orders and in case the
situation so warrants, steps have to be taken under other provisions
of the law such as section 107 or section 145 of the Code when
individual disputes are raised and to meet a situation such as here,
there are provisions to be found in the Police Act. If repetitive
orders are made it would clearly amount to abuse of the power
conferred by section 144 of the Code.
Xxx xxx xxx
Thus the clear and definite view of this Court is that an
order under section 144 of the Code is not inten-ded to be
either permanent or semi-permanent in character. The
consensus of judicial opinion in the High Courts of the
country is thus in accordance with the view expressed by
this Court."
16. The Supreme Court in Smt. Maneka Gandhi v. Union of
India reported in (1978) 1 SCC 248 : A.I.R. 1978 S.C. 597 has
empha-sised the requirement of fair play in action and
application of the principles of natural justice even in
administrative actions. It has been laid down therein that
if the situation does not permit a pre-decision opportunity
of hearing, such opportunity is to be given at the earliest
post-decision stage.
.... .... ....
32. Moreover, the proposition that feeling of irritation by a
section of the people is sufficient to interfere with the guaranteed
fundamental right of peaceful residence is fraught with dangerous
consequences. In a democracy where different antagonistic
political parties or groups function, visit or presence of a
leader may be an irritant to the supporters of the rival
groups or political parties. In India demonstration,
79
showing of black- flag, holding of protest rallies against
visit of leaders and even foreign dignitaries are not
unusual. If feeling of irritation by a section of the public is
regarded as sufficient to prohibit peaceful residence, most
of the dignitaries and leaders cannot enjoy free-
movement. The apprehension expressed in the police
report did not call for the total prohibition inflicted by the
impugned order. The impugned order was/is overhasty
and ex facie disproportionate to the apprehension reported
and satisfaction recorded. There was no such emergency
justifying direction to throw out the writ petitioner outside
the Puri subdivision immediately. Emergency, if any, could
have been taken care of by imposing certain reasonable
restrictions on the movement and activity of the writ
petitioner in Puri and further order could have been passed
depending on further development. If this kind of over-
hasty and disproportionate order is allowed to survive the
cherished freedom guaranteed by the Constitution will be
meaningless. It is thus clear and apparent that the
Executive Magistrate has failed to exercise his extra-
ordinary power under section 144, Cr. P.C. in accordance
with the settled legal principles as mentioned earlier.
33. Although this Court holds that the prohibition as
imposed, was is unreasonable it accepts that materials on record
make out a case for imposition of reasonable restrictions on the
movement and activity of the writ petitioner during his stay at
Puri.
34. This Court is unable to accept the allegation that
impugned order was passed at the instance of the present District
Magistrate and Collector, Puri as there is no material excepting
his letter dated September 5, 1999 (Annexure-2) written to the
Commissioner of Police, Baroda to arrive at such conclusion. The
said letter gives rise to some suspicion, but suspicion is no
substi-tute for conclusive proof. At the same time this
Court observes that such an official letter from the head of
the district adminis-tration was not proper. This letter
could be appreciated if it was written by Secretary or a
devotee or disciple or admirer of the present
Sankaracharya of Puri and not by the Collector of the
district.
80
35. As this Court has elaborately analysed the merit of
the impugned order to examine its sustainability, it is not
consi-dering the submission whether the order is bad due
to non- obseivance of principles of natural justice, either
before or after the impugned order.
36. Mr. Sovesh Ray, learned Advocate General, Mr. A.
Mukherji and Mr. A.B. Misra, Senior Advocates have referred to
various decisions and have submitted that the fundamental rights
and legal rights of an individual can be curtailed where
maintenance of peace, public order and tranquility demand such
restriction. There is no dispute about that proposition.
Existence of power and exercise of power are two different
things. Even where there is power, its exercise must be for
achieving the object for which such power has been
conferred. It is also equally settled that this extra-ordinary
power under section 144, Cr.P.C. is to be exercised bona
fide, judiciously and only to the extent the situation
justifies. Arbitrariness and/or use of power for a co-
laterial or oblique purpose is anathema to a democratic
society governed by rule of law. It has been submitted that
the admini-stration is the best judge of the prevailing
situation as it is responsible for maintenance of public
peace, law and order and the court of law should not
substitute its opinion in place of the opinion in the
administration. It is true that proper respect should be
given to the perception of administration, but even such
perception is subject to judicial review and when it is
found that perception is imaginary or perceived threat has
been blown out of proportion in order to make out a case
for sweeping restrictions the High Court cannot shut its
eyes to such improper use or misuse of power.
37. It is a basic principle of rule of law that the
admini-strative authorities exercising statutory powers
and even discre-tions must act objectively, reasonably,
fairly and justly because "discretion is a science or
understanding to discern between falsity and truth,
between wrong or right, between shadows and substance,
between equity and colourable gloss and pretences and
uot??? to do according to their wills and private affections"
(Administrative Law, Wade and C.F. Fersyth, 7th Edition, Pages
387-388).
81
38. Applying the above formulation this Court is of the
view, that the Executive Magistrate failed to exercise his
discretion in a just, fair and objective manner and
impugned order attracts judicial interference.
39. In the facts and circumstances as stated herein
above, this Court is of the view that the impugned
prohibition is unsus-tainable but the petitioner is liable to
be made subject to some reasonable
restrictions/prohibition proportionate to the apprehen-ded
threat. Accordingly while setting aside the impugned
prohibition this Court thinks it fit and proper to impose
certain restrictions on the movement and activity of
petitioner during his stay at Puri. However as life of impugned
order is only two months from the date of order, the restrictions
imposed by this order will be co-extensive with the life of the
original order. In case it becomes necessary to pass any fresh
order the concerned Magistrate and the other administrative
authorities will bear in mind the principles stated and
observations made in this judgment and act objectively and
reasonably as the situation demands.
40. For the foregoing reasons the impugned order of
prohibition dated July 15, 2000 passed by the Subdivisional
Executive Magistrate, Puri is set aside subject to the following
restrictions on the movement and activity of the writ petitioner
during his stay at Puri.
(i) The writ petitioner is prohibited from going within a
radius of 1000 meters from Gobardhana Pitha, the
sacred seat of Sankaracharya, Puri.
(ii) The writ petitioner will not hold any public meeting or
take out any procession during his stay in Puri,
(iii) During his stay at Puri the writ petitioner will not
claim any right or privilege as Sankaracharya of Puri
so long as his claim is not recognised and/or
established in appropriate forum in accordance with
law.
82
(iv) The writ petitioner will not issue any statement
containing disparaging remarks or casting refletions
on the present recognised Sankaracharya of Puri.
(v) Whenever the writ petitioner wants to move out of
his place of stay in Puri outside the prohibited zone,
he will inform the local police station in advance. The
above restrictions and restraints will remain opera-
tive till the period of validity of the impugned order
dated July 15, 2000. If the Subdivisional Executive
Magistrate or any other appropriate authority decides
to pass any fresh order he will keep in mind the
enunciations and observations made in this judgment
before passing any such order. "
(Emphasis supplied)
The High Court of Orissa in the afore-quoted judgment holds
that that power under Section 144 of the Cr.P.C. is an extraordinary
power which can be exercised even ex-parte in an emergency on the
basis of real apprehension, but restriction or prohibition should be
confined to what is necessary to prevent the apprehended threat.
Even the High Court of Orissa was considering an order passed
under Section 144 of the Cr.P.C. against a Swamiji like in the case
at hand. The High Court of Orissa quashed the notice on the ground
that there was no recording of emergency or real apprehension.
83
15. A division bench of this Court in the case of SOWMYA R.
REDDY v. STATE OF KARNATAKA17 considers the power under
Section 144 of the Cr.P.C. and importance of the word 'opinion'
found in sub-section (1) of Section 144 of the Cr.P.C. The Division
Bench holds as follows:
"21. Thus, the satisfaction which is required to be
recorded under sub-Section (1) of Section 144 of the said Code
can be subjective, but the same has to be arrived at objectively
by taking into consideration the relevant factors as are
contemplated under Section 144 of the said Code.
22. The entire law on the subject has been summarized in
the recent decision of the Apex Court in the case of Anuradha
Bhasin, (supra). In paragraph 70, it has been held that normally
the least restrictive measures should be resorted to by the
State. It is further held that even the Doctrine of Proportionality
has to be applied to an order under sub-Section (1) of Section
144 of the said Code. Thirdly, it is held that power can be
exercised only in urgent situations and in cases of apprehended
danger. Paragraph 108 is most material. Clauses (a) and (b) of
paragraph 108 read thus:
"108. The aforesaid safeguards in Section 144,
Cr.P.C. are discussed below and deserve close scrutiny.
(a) Prior Inquiry before issuing Order: Before
issuing an order under Section 144, Cr.P.C., the District
Magistrate (for any authorised Magistrate) must be of the
opinion that:
i. There is a sufficient ground for proceeding under this
provision i.e., the order is likely to prevent
obstruction, annoyance or injury to any person
lawfully employed or danger to human life, health or
safety or disturbance to the public tranquility; and
ii. Immediate prevention or speedy remedy is desirable.
17
2020 SCC OnLine Kar. 1527
84
The phrase "opinion" suggests that it must be arrived
at after a careful inquiry by the Magistrate about the need to
exercise the extraordinary power conferred under this
provision.
(b) Content of the Order: Once a Magistrate arrives at an
opinion, he may issue a written order either prohibiting a
person from doing something or a mandatory order requiring
a person to take action with respect to property in his
possession or under his management. But the order cannot
be a blanket order. It must set out the "material facts"
of the case. The "material facts" must indicate the
reasons which weighed with the Magistrate to issue an
order under Section 144, Cr.P.C."
23. Thus, as held in Clause (a) of paragraph 108,
there has to be formation of an opinion by the District
Magistrate as specifically observed in sub-Section (1) of
Section 144 of the said Code. Formation of opinion must
be that immediate prevention is required. What is more
important is that the Apex Court held that the use of the
word "opinion" suggests that it must be arrived at after a
careful inquiry. The Apex Court held that "careful inquiry''
is contemplated as the District Magistrate is about to
exercise extraordinary power conferred under Section
144 of the said Code. Coming to the aspect of "careful
inquiry," it must be stated here that the statement of
objections filed by the State Government is not affirmed
by the District Magistrate who passed the impugned
order, but it is affirmed by an Assistant Commissioner of
Police who has no personal knowledge whether any
"careful inquiry" was held by the District Magistrate who
passed the order. A perusal of the impugned order shows
it is only a reproduction of what is stated in the reports
submitted by the Deputy Commissioners of Police. There
is not even a remote indication that any further inquiry
was made by the District Magistrate. The Learned Advocate
General submitted that no inquiry was called for as the District
Magistrate who was the Commissioner of Police, had to believe
the version of the officers working in the field. It is also an
admitted position that some of the Deputy Commissioners of
Police had themselves granted permissions to hold protests
during the period the three days (19th to 21st December 2019)
under the provisions of the said Order and the said material fact
85
was not mentioned in their reports submitted to the
Commissioner of Police. The stand of the State Government is
that no inquiry was necessary. That implies that no inquiry was
held by the District Magistrate. The District Magistrate was
under an obligation to make his own inquiry before arriving at
the subjective satisfaction. It is not even the case of the State
that the District Magistrate held even any telephonic discussion
with the Deputy Commissioners who had submitted the reports
about the source of their information. This is not a case where
even some inquiry was made by the District Magistrate to arrive
at subjective satisfaction about the necessity of passing the
impugned order. The stand of the State is that the reports were
submitted by the Deputy Commissioners of Police working in the
field. But still an inquiry was called for, as held by the Apex
Court. The reason is what is relevant is the subjective
satisfaction of the District Magistrate and formation of
opinion by him. As stated earlier, there is not even a
remote indication in the impugned order that there was
any kind of inquiry made on the basis of the reports
submitted by the Deputy Commissioners of Police, by the
District Magistrate himself. As stated earlier, there is no
affidavit filed by the District Magistrate. It is virtually an
admitted position that some of the Deputy Commissioners had
already granted permissions to hold the protests on the very
days (19th to 21st December 2019) after making due inquiry as
per the said Regulation Order. But, the said fact was not
disclosed in the reports. Secondly, except for setting out what
the Deputy Commissioners of Police have stated in the reports,
no facts have been set out in the impugned order. The material
facts as held by the Apex Court must indicate the reasons
weighed with the District Magistrate to issue the order."
(Emphasis supplied)
The Division Bench of this Court clearly holds that the word
'opinion' found in sub-section (1) of Section 144 of the Cr.P.C. has
certain importance. The opinion found would be after an inquiry and
arriving at an order. Orders under Section 144 of the Cr.P.C. cannot
be bald. Power under Section 144 must be exercised only in urgent
86
cases of nuisance and apprehended danger. Formation of opinion
by the District Magistrate must be that immediate prevention is
required.
16. Long before the afore-quoted judgment in SOWMYA
REDDY supra, a learned single Judge of this Court, in similar
circumstances in the case of PRAMOD MUTHALIK v. DISTRICT
MAGISTRATE, DAVANAGERE18, while quashing an order passed
under Section 144 of the Cr.P.C. on the grounds of non-issuance of
any notice to the petitioner and absence of sufficient reasoning,
holds as follows:
".... .... ....
9. Drawing parallel to the facts, the Counsel for the
petitioner submitted that in the present case, the
restriction placed is highly excessive and more than the
need. In this regard the decision of the Supreme Court in
Rupinder Singh Sodhi v. Union of India [(1983) 1 SCC 140.] also
lays down a binding ratio in the following words in para 2.
"2. ...... But all such restraints on personal
liberty, if at all, have to be commensurate with
the object which furnishes their justification.
They must be minimal and cannot exceed the
constraints of the particular situation, either in
nature or in duration. Above all, they cannot be
used as engines of oppression, persecution,
harassment or the like. The sanctity of person
and of privacy has to be maintained at all costs
and that cannot ever be violated under the guise
of maintenance of law and order."
18
2003 SCC OnLine Kar 95
87
10. In the light of the ratio laid down in the decision of the
Supreme Court and the Bombay High Court the material in the
impugned order and the accompanying objection statement filed,
show total absence of material to justify passing of an exparte
order. The impugned order does not contain how the
situation is so emergent and does not admit compliance of
rules of natural justice of providing opportunity to show
cause before an order is made.
11. The facts indicate that a murder had taken place on
31.12.2002. The accused were the people belonging to Muslim
community, the funeral procession of the deceased were taken
out by the activists of the B.J.P., Bhajarangadal, V.H.P. in
greater numbers and that during the procession inciting and
inflammatory slogans were raised against muslim community
having a tendency of building up a communal tension in the
town. In fact the procession of the nature stated was
taken out, there would have been a police escort and any
violators of law contributing for communal tension should
have been dealt with. The order does not indicate any
such action having been taken and no case as such
against any person registered to substantiate the said
allegations. Immediately on the following days, no
untoward incidents of any nature have happened.
Therefore to say that the petitioner's visit would lead to
worsening of law and order situation and would result in
building of communal tension by his alleged inflammatory
speeches appears to be farfetched reason.
12. Assuming for the moment hypothetically that
the visit of petitioner is likely to create communal tension
by his inflammatory public speeches. The blanket order
debarring the petitioner from entering the district of
Davanagere appears to be too harsh, excessive and
disproportionate to the need. It is evident from the order
that by inflammatory speeches of the petitioner, it is likely
that communal tension would build up resulting in breach
of peace and public tranquility. If the act of delivering
public speeches is alone to be the cause for the
apprehended threat to public peace only to the extent of
directing the petitioner not to address public rallies could
have been a suffice solution. On the contrary, debarring
the petitioner from entering the district for a period of one
month by a blanket order is too excessive. The Magistrate
88
without resorting the debarring of the petitioner from
entering Davanagere, could have directed the petitioner
and all the political organizations from holding any rallies
or meetings for some time in order to allow the event of
murder to the down in the memories of the public.
13. The provisions of sub-sections 5, 6 and 7 provides a
statutory in built protection to the aggrieved to apply to the
Magistrate or to the Government as the case may be for
rescinding or altering the order by showing the cause and in the
event of such an application made under sub-section (5) it is
mandatory obligation on the part of the authority to consider the
objections and dispose of the same on merits by a written order
supported by reasons. It is also necessary to mention that
the opportunity to be provided is not a illustory formality.
The combind reading of the provisions of sub-section (1)
and (2) and sub-sections 5, 6 and 7 would impliedly
underlays the requirements of passing an order either
under sub-section (1) of Section 144 Cr. P.C. or exparte
order under sub-section (2) of Section 144 Cr. P.C. all the
necessary details of facts and the incriminating material
should form part of the order. Any allegations if borne out
by a documentary material, it is necessary for the
authority concerned to provide copies of such
documentary material along with the order to enable the
respondent to show cause against the order. Mere
mention of the particulars of criminal cases does not be a
sufficient compliance. It is necessary that the document
relating to the cases mentioned have to be furnished.
Some times it could happen that any of the incriminating
material borne out by documents is made subject matter
of the order and if the said incriminating material are to
be obtained from far of places and not immediately
accessible to the respondent, mere mention of case
numbers in the indictment order would not be a sufficient
opportunity in practical or real sense. The authority while
acting upon such incriminating material necessarily would
have with it the documentary material in that regard and
necessary copies of the same have to be furnished along
with the order. In the present case, I find although there
is mention of registration of some cases elsewhere the
copies of the FIR and other incriminating material have
not been furnished. In the absence of such compliance, it
89
cannot be said that there is proper compliance to enable
the respondent to meet the case effectively."
(Emphasis supplied)
The learned Single Judge in the afore-quoted case holds that
the blanket order passed under Section 144 of the Cr.P.C. debarring
the petitioner from entering the entire District was too harsh,
excessive and disproportionate and the Magistrate should have
instead desisted the petitioner from holding any rallies or meetings.
The Learned Single judge further holds that such restraints on
personal liberty should be commensurate with the object of the
order and it must be minimal and cannot exceed the constraints of
the particular situation, either in nature or duration.
17. Later, another learned Single Judge of this Court, in
similar circumstances in the case of SHRI.PRAMOD v. THE
DISTRICT EXECUTIVE MAGISTRATE19, following the afore-
quoted judgment of the Co-ordinate Bench of this Court in PRAMOD
MUTHALIK supra, holds as follows:
".... .... ....
5. Learned counsel for the petitioner has submitted that
the said order is illegal and it is against the principles of natural
19
WRIT PETITION NO.112655/2015, DISPOSED ON 18-11-2015
90
justice. No notice or opportunity was given to the petitioner
before passing such order. He has submitted that perusing the
materials placed on record, there was no such emergency
situation invoking Section 144 (2) of Cr.P.C in passing the order
exparte. Hence, he has submitted that petition be allowed and
the order passed by the respondent, which is challenged in this
writ petition be set-aside.
In support of his contention, learned counsel for the
petitioner has relied upon the decision reported in ILR 2003
KAR 1953 in the case of Pramod Muthalik vs. The District
Magistrate, Davanagere.
6. Per contra, learned HCGP has submitted that there are
many criminal cases filed against the petitioner, he is the
president of Shree Ramsena, Karnataka. In the earlier occasion
also he gave the inflammatory speech, which affected the
communal feelings of the Muslim communities and leads to
breach of peace and public tranquility. Learned HCGP has also
submitted that before passing such order, the respondent
obtained the report from the competent Police Officers about the
situation, after receiving the report and after applying the mind
to the reports as well as the to the situation and as the situation
demanded, the respondent proceeded to pass the exparte order
in the matter.
It is also submitted that the order passed is in the interest
of public at large. No illegality has been committed in the said
order. Therefore, it does not call for any interference by this
Court in this petition. The respondent authorised to pass such
administrative orders and in this connection, learned HCGP has
relied upon the decision of the Hon'ble Supreme Court reported
in AIR 2004 SC 2081 in the case of State of Karnataka and
another v. Dr.Praveen Bhai Thogadia.
7. I have perused the averments made in the petition, the
order passed by the respondent-District Executive Magistrate,
which is produced as per Annexure-A and also the decisions
relied upon by the learned counsel for the petitioner and the
learned HCGP, which are referred above.
8. Looking to the materials placed on record and the order
passed as per Annexure-A, it shows that before issuing such
order, the respondent obtained the report from the Police
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Officers on 23.10.2015 (as it is refereed in the order as per
Annexure-A) and this order has been passed on 30.10.2015. But
admittedly, even according to the respondent, before passing
such order as against the petitioner, no show cause notice was
issued to him, giving him an opportunity to show cause why such
order should not be passed against him, for which, it is the
contention of the respondent that there was an emergency
situation and therefore, such an order has been passed.
I have carefully perused the entire order passed, which is
at Annexure-A, consisting of 7 pages, nowhere it is mentioned
that why such prior notice was not issued to the petitioner asking
him to show cause about passing of the impugned order. In the
said order also there is no specific mention that by issuing prior
show cause notice, the very object of issuing the impugned order
is going to be defeated or the situation will be worsened.
9. I have perused the decision relied upon by the
learned counsel for the petitioner reported in ILR 2003 KAR
1953 in the case of Pramod Muthalik vs.The District
Magistrate, Davanagere wherein His Lordships laid down the
proposition as under:
CRIMINAL PROCEDURE CODE, 1973 (Central Act
No.2 of 1974) - SECTION 144- -District Magistrate
- Order debarring entry of petitioner in entire
District -Apprehension that petitioner would
address public gatherings to incite communal
feelings and affect public peace and order
opportunity to show cause not provided - Order
found to be violative of natural Justice-blanket
order debarring petitioner from entire district held
to be too harsh, erassive and disproportionate to
need.
I have also perused the decision reported in 1989
CRI. L.J.1364 (Bombay High Court) in the case of Manohar
Gajanan Joshi v. S.B.Kulkarni and others. Their Lordships
have laid down the proposition as under:
(A) Criminal P.C.1973 (2 of 1974), S.144(2)
- Ex parte order restraining petitioner from
entering District - Neither order nor return filed by
D.M. showing how situation was emergent and
time available was not enough to serve show cause
notice - Order is liable to be quashed.
92
I have also perused Section 144 of Cr.P.C, Synopsis
No.23 in the book by RATANLAL AND DHIRAJLALLAL on
The Code of Criminal Procedure 19th enlarged edition,
which reads as follows:
"23. Ex parte orders (sub-section (2)). - "Ex
parte" orders can be passed only under two
circumstances : (1) in cases of emergency; and (2)
where the circumstances do not admit of personal
service. A mere statement by the Magistrate that
he is satisfied that there is every possibility for
serious breach of peace between the parties as
well public tranquillity is not sufficient to exercise
power under S.144(1) and 144 (2) CrPC. But,
ordinarily, an order under the section should not be
made, without an opportunity being afforded to the
person against whom it is proposed to make it, to
show cause why it should not be passed.
An ex parte order restraining a person from
entering within the limits of the entire district, is
not proper when the disturbances had taken place
only in three towns in the district. Where there was
agreement for sale of flat between the petitioner
and opposite party builder, civil suit was also
pending beween the parties, there was no evidence
of any apprehension of breach of peace, the District
Magistrate was not justified in passing an exparte
prohibitory order under S.144 Cr.P.C on the basis
of which the petitioner effected forcible entry in
the flat. Under S.144(2), the Magistrate has no
jurisdiction to disturb the possession of a party, or
to direct the police to hand over possession of the
disputed property in favour of any of the parties.
A blanket order prohibiting entry of the
petitioner leader of political organization in the
district for a period of one moth, merely on the
ground that his inflammatory speeches would
create tension in the area, without providing
material to the petitioner would be bad in law, and
would be set aside."
10. So considering these propositions of law, which
mandates that before passing the said order, show cause
notice is to be given and if in case of any exigency or
93
urgency and issuing of such notice is going to defeat the
very purpose, same could have been mentioned in the
order and the District Executive Magistrate or the
competent authority can invoke Section 144 of Cr.P.C or
any other for passing exparte orders.
But perusing the impugned order, which is
challenged in this proceedings, there is no such specific
mention throughout the said order, why such exparte
order is going to be passed and why the show cause
notice was not issued to the petitioner asking him to show
cause in the matter.
The materials show that Police report was received on
23.10.2015 about the situation of tense and according to the
respondent-District Executive Magistrate that situation was so
immediate and it was the need of the hour, he could have
proceeded to pass the order either on 23.10.2015 or on the next
day, but materials show that he waited till 30.10.2015 i.e., for a
period of seven days after receiving such a report from the
concerned competent Police Officers, so during this period of
seven days nothing prevented the respondent to issue
prior show cause notice to the petitioner and he could
have very well taken the reply from the petitioner about
the said situation, which is not done in this case.
11. I have also perused the decision relied upon by
the learned HCGP and the principles enunciated in the
said decision, which is refereed above. But looking to the
facts and circumstances in the said reported decision
about issuance of the exparte order or issuing the show
cause notice or obtaining the reply from the concerned
person against whom the order is going to pass, this
aspect is not discussed in the said decision and it was not
the point before the said Court in the said decision.
Therefore, looking to the facts and circumstances in the
said reported decision and the facts and circumstances in
the case on hand so far as passing of the exparte order
invoking Section 144(2) of Cr.P.C, they are not exactly
one and the same.
12. Right of speech and expression is a fundamental
right given to every citizen of this country under Article 19
of the Constitution of India, but it is no doubt true such
94
right of speech and expression is not absolute right of the
citizen, it is subject to reasonable restrictions as
enumerated in the said Article 19 itself.
But when it is the apprehension of the respondent
authorities that there is every likelihood that the
petitioner is going to give such an inflammatory speech
disturbing/exciting the communal feelings, more
particularly, of Muslim community and thereby disturbing
the public peace and tranquility is concerned, by issuing
such prior show cause notice the respondent authorities
could have permitted the petitioner by putting reasonable
restrictions as they feel that such and such restrictions
are necessary in the matter.
13. Perusing the order, which is passed in this case, so far
as opening of the branch office at Khanapur Taluk and creating
the disturbance of public peace and tranquility by Shree
Ramsena workers is concerned, it is mentioned that the
petitioner has not delivered any such speech on such occasion,
but it is the other workers of Shree Ramsena, who have
delivered such speech.
Therefore, under such circumstances even though
as submitted by the learned HCGP that the respondent-
District Executive Magistrate is authorized and is a
competent person under the Statute that he can pass such
administrative orders, but while passing such orders
whether the procedural aspects were taken into
consideration or not is subject to judicial scrutiny by way
of judicial review.
14. Therefore, considering all these aspects of the matter,
the principles enunciated in the decisions, which are referred
above and the legal position of the matter, I am of the opinion
that the order, which is challenged in this case, is not after
following the mandatory requirements of law, hence, it is illegal
and not sustainable in law. Accordingly, petition is allowed and
the impugned order passed by the District Executive Magistrate
/D.C.Belagavi District, bearing No.DC.Pee.O.L.CR.1157/2015-16
dated 30.10.2015 as at Annexure-A is hereby quashed."
(Emphasis supplied)
95
The learned Single Judge in the afore-quoted case quashes the
order under Section 144 of the Cr.P.C. on the score that there was
no such specific mention throughout the said order, as to why an
ex-parte order was required to be passed and why the show cause
notice could not be issued to the petitioner. The learned Single
Judge further holds that when the State had apprehensions that the
petitioner was going to give inflammatory speeches, exciting
communal feelings, disturbing public peace and tranquillity, the
State by issuing a show cause notice in prior, could have permitted
the petitioner by putting reasonable restrictions as they feel were
necessary in the matter.
18. If the order impugned is examined on the
touchstone of the principles delineated by the Apex Court as
well as different High Courts, it becomes evident that the
order is wholly indefensible and thus, unsustainable. The
order fails to record the existence of any emergent situation
that could conceivably justify a restraint enduring for as long
as two months. The mere fact that the statute permits a
maximum duration of two months, does not bestow upon the
Authority a license to exercise such power in a cursory and
96
cavalier manner as reflected in the present case. There is an
absence of any record for subjective satisfaction on the part
of the respondent, that an ex-parte order was warranted.
Equally absent is any indication of prevailing emergency vis-
à-vis. the petitioner that could justify a restraint of such
disproportionate length. The Apex Court has unambiguously
held that an order which has once been the subject matter of
interpretation before a coordinate bench cannot by itself
serve as an exclusive foundation for initiating a fresh
restrictive action. Yet, in the case at hand, the very order
has been pressed into service as the sole basis, as it is
passed on a representation which said nothing but the order
passed by the coordinate bench. This unmistakably suggests
that no other material exists against the petitioner.
19. The State has placed heavy reliance upon the judgment in
the case of STATE OF KARNATAKA v. PRAVEEN BHAI
THOGADIA (Dr.)20. The said judgment is distinguishable without
much ado. In the case before the Apex Court the State had passed
an order of prohibition for only 15 days and in most peculiar
20
(2004) 4 SCC 684
97
circumstance it was upheld. In the case at hand, it is passed for
two months while the programme was only for three days between
05.11.2025 and 07.11.2025. However, the prohibitory order spans
from 05.11.2025 until 03.01.2026. The order is devoid of reasons,
proceeds purely on conjectures for imposition of restraint of
manifestly excessive duration. Thus, the impugned order fails the
test of constitutionality and legality set forth by the Apex Court, by
the division bench of this Court, coordinate benches of this Court
and different High Courts. On all the aforesaid grounds, this petition
is entitled to succeed. The undertaking furnished by the learned
counsel for the petitioner that the petitioner would conduct himself
with restraint and shall not transgress the bounds of liberty now
accorded, stands duly recorded.
20. For the aforesaid reasons, the following:
ORDER
(i) Writ petition is allowed.
(ii) The order dated 04.11.2025, bearing No.MAG-1/Sha
Su/Va.Hi-257/2025-26, passed by the respondent,
stands obliterated.
(iii) All consequential actions taken / to be taken pursuant to
the impugned order also shall stand obliterated.
Sd/-
(M.NAGAPRASANNA)
JUDGE
nvj
CT:MJ
