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High Court Of Himachal Pradesh
LEELA SETH,DEVINDER GUPTA
CHANDER SINGH MANDYAL - Appellant
Versus
STATE OF HIMACHAL PRADESH - Respondent
Civil W. P. No. 415 of 1992 and CMP No. 857 of 1992
Decided On : 06/26/1992
SECTION 144 CRPC - MAINTENANCE OF PUBLIC ORDER - MATERIAL FACTS - REASONABLE RESTRICTIONS ON FUNDAMENTAL RIGHTS - EMERGENCY - ANTICIPATORY ACTION - BALANCE BETWEEN FUNDAMENTAL RIGHTS AND PUBLIC ORDER - VOID AND ARBITRARY ORDERS - OBJECT OF SECTION 144 CRPC - WRIT PETITION DISMISSED.
Fact of the Case:
Petitioners, representing non-gazetted officers of Himachal Pradesh, challenged an order passed under Section 144 of the Code of Criminal Procedure, 1973, by the District Magistrate, Shimla, prohibiting certain activities, including public meetings and rallies, in two areas of the city. They alleged that the order was arbitrary, void, and infringed their fundamental rights under Article 19(1) of the Constitution.
Finding of the Court:
The court found that there was material on the basis of which the District Magistrate could have formed an opinion that there was an apprehension of breach of peace and disturbance of public tranquility. The court also held that the order did indicate the material facts, as required by Section 144 CrPC, and that it was not necessary to set out the detailed particulars or reasoning behind the formation of opinion.
Issues: 1. Whether the impugned order passed under Section 144 CrPC was arbitrary, void, and infringed the petitioners' fundamental rights under Article 19(1) of the Constitution. 2. Whether the District Magistrate had applied his mind and considered the material facts before passing the order.
Ratio Decidendi: 1. The court held that the order was not arbitrary or void, as it was passed by a responsible senior officer, the District Magistrate, and pertained only to certain limited actions in two areas of Shimla. 2. The court also held that the order did indicate the material facts, as required by Section 144 CrPC, and that it was not necessary to set out the detailed particulars or reasoning behind the formation of opinion. 3. The court further held that reasonable restrictions can be placed on the fundamental rights of speech and assembly guaranteed under Article 19(1) in view of the provisions of Articles 19(2) and 19(3) of the Constitution.
Final Decision: The court dismissed the writ petition, holding that the order was neither void nor arbitrary nor passed for extraneous reasons and that the object of Section 144 CrPC is to preserve public peace.
Leela Seth, C. J.—The main prayer of the two petitioners, who are the Secretary and member respectively of the Joint Action Committee of the non gazetted officers of Himachal Pradesh is for quashing Annexure-Pl, which is an order dated 19th June, 1992 passed under section 144 of the Code of Criminal Procedure, 1973 by respondent No, 2, the District Magistrate, Shimla.
2. An averment has been made in paragraph 10 of this petition regarding the mala fides of "the Honble Chief Minister of Himachal Pradesh”. However, the Chief Minister has not been made a party and Mr. M. S. Chandel, learned Counsel for the petitioners, has clearly stated at the Bar that the petitioners are not pressing paragraph 10 of the petition and the allegations of mala fides.
3. Learned Counsel for the petitioners submits that the impugned order is arbitrary and void and must be quashed since "the material facts" have not been set out in the said order dated 19th June 199 A He further submits that the fundamental rights of the petitioners under Article 19 (1) of the Constitution have been infringed and they are prejudiced as they are not aware as to why the order has been passed. He also contends that there was no material justifying the passing of the order, as such, there has been total non-application of mind by respondent No. 2, the District Magistrate, Shimla.
4. In order to appreciate these arguments, it is necessary to set out the impugned order which reads: "WHEREAS, it has been made to appear to me that there is apprehension of breach of peace and disturbance of public tranquility because of strike by a section of HP NGOs in some parts of the city. AND WHEREAS, I am of the opinion that in the interest of safety and public life and property, it is necessary to take action under section 144 of the Code of Criminal Procedure. Now, therefore, I, P. C Kapoor, IAS, District Magistrate, Shimla, in exercise of the powers vested in me under section 144 of Cr. P. C, do hereby prohibit the following from Mall Road terminal point Chhota Shimla to H. P. Secretariat gate and Subzi Mandi Ground.
1. Holding of public meetings, rallies, taking out of processions and demonstration.
2. Shouting of salogans.
3. Carrying of flags, banners, mashals, hockey sticks and like which are likely to be used as weapons of offence.
4. Assembly of five or more persons, which is likely to cause disturbance of public peace and tranquility or moving with intention to create annoyance or obstruction to any peaceful citizen. This order shall come into force from 19th June, 1992 and shall remain into force till further orders. This order shall not apply to military/para -military and police forces while on duty and funeral or marriage processions. This order shall be notified and published through the publicity van of District Public Relations Department, Ail India Radio and by affixing copies of this order on the Notice Board of District Courts and that of Municipal Corporation, Shimla. Given under my hand and seal of the District Magistrate this 19th day of June, 1992."
5. From the said order it is apparent that the District Magistate was of opinion that it was in the interests of safely and public liferand property to take action under section 144 Cr. P G as there was apprehension of breach of peace. The material facts of the case mentioned in the order are that there is an apprehension of breach of peace and disturbance of public tranquility in some parts of the city because of the strike by a section of the Himachal Pradesh non gazetted officers. Consequently, he prohibited the holding of public meetings, rallies etc., shouting of slogans, carrying of flags, banners, mashals, hockey sticks etc. and assembly of five or more persons as indicated in the order, in two areas of Shimla town 8 11) from the Mail Road terminal point Chhota Shimla to Himachal Pradesh Secretariat gate ; and (2) the Subzi Mandi grounds.
6. Learned Counsel for the petitioners has confined his argument to the deb
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