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2012 Supreme(Mad) 1469
High Court of Judicature at Madras
MR. M.Y. EQBAL & T.S. SIVAGNANAM, JJ.
P. Pugalenthi
Versus
State of Tamil Nadu rep. by the Chief Secretary to Government Secretariat & Another
W.P.Nos.7520, 7633 & 7634 of 2012
Decided On : 26-03-2012
For the Petitioner:M. Radhakrishnan, Ms. R. Vaigai for P.G. Thiyagu, N.G.R. Prasad, Advocates.
For the Respondents:A. Navaneethakrishnan, Advocate General assisted by S. Venkatesh G.P, T.N. Rajagopalan AGP, M. Ravindran, Addl Solicitor General assisted by B. Manoharan CGSC.
Ratio
Public interest litigation is not maintainable to challenge the prohibitory order passed under Sec.144 Cr.P.C. against the activities of some identifiable persons/groups.
Headnote:(A)Constitution of India-Art.226-Code of Criminal Procedure, 1973(2 of 1974)-Sec.144-Fundamental right-Right to move-Prohibitory order-Challenge-Public interest litigation-Maintainability-Locus standi-As against the establishment of atomic power plant in Koodangulam, some organizations were spearheading agitation and preventing the staffs from entering the plant-Later, the committee appointed by the State Government had opined that the plant was safe-When the agitations continued which prevented the entry of essential commodities into that area and the engineers into the plant, the District Collector had promulgated prohibitory order under Sec.145 Cr.P.C which was challenged by the petitioners by contending that there was no subsisting urgency to pass such order and the fundamental right of the people were affected thereby-State resisted the plea by contending that it was not a general order and passed only against those who had been preventing the staffs from entering the plant and disturbing the movement of essential supplies in the area and the petitioners had no locus standi to challenge the same-Held, as the order was passed only against certain persons and not general in nature only the persons who would be affected by it could question the same and PIL would not be maintainable in that regard-The affected persons could also approach the District Collector seeking revocation of the order passed-District administration was directed to ensure the uninterrupted supply of essential articles to the people-Writ petitions were dismissed.
(B)Constitution of India-Art.226-Code of Criminal Procedure, 1973(2 of 1974)-Sec.144-Fundamental right-Right to move-Prohibitory order-Challenge-Public interest litigation-Maintainability-Locus standi-Public interest litigation is not maintainable to challenge the prohibitory order passed under Sec.144 Cr.P.C. against the activities of some identifiable persons/groups.
The petitioners would further contend that the impugned Prohibitory order has not been made available in the public domain, copy of which was produced before this Court by the learned Advocate General. Having held that the Prohibitory order has been passed against an identifiable/identified group/political party/organisation/ association/person, it is for such aggrieved individual to seek for a copy of such order or to state that the order was not served in accordance with Section 134 Cr.P.C. Therefore, in our view the petitioners cannot be said to be persons aggrieved, so as to question the manner of service of the Prohibitory order. Likewise, the order having been passed against identified/identifiable group, such order cannot be questioned in a public interest litigation more so when the order has been passed stating the material fact and the Magistrate being satisfied that immediate prevention and speedy remedy is desirable. Para 20
Chief Justice & T.S.Sivagnanam, J.
1. These writ petitions designed as 'Public interest litigation' have been filed, praying for issuance of a writ of Declaration, declaring the action of the respondent, namely, the District Collector, Tirunelveli District, clamping an order under Section 144 CrPC, on the entire Radhapuram Taluk, Tirunelveli District from 3.00 p.m of 19.03.2012 till 3.00 p.m of 02.04.2012 as being null and void and for a consequential direction to restore normalcy to the Radhapuram Taluk, Tirunelveli District and in particular Idinthakarai.
2. The petitioners have stated that "The Hindu" dated 20.03.2012, reported that a Prohibitory Order under Section 144 CrPC was clamped on Radhapuram Taluk, Tirunelveli District and the Taluk comprises of about 50 villages and by virtue of such order, the people residing in those villages have been virtually under house arrest and therefore, a direction has been sought for immediately to lift the Prohibitory Order passed under Section 144 CrPC and allow the people of Radhapuram Taluk to move freely.
3. Mr. M. Radhakrishnan, learned counsel appearing for the writ petitioner submitted that the District Collector in the guise of exercising his power for maintaining public peace and tranquillity, deprived the people of Radhapuram Taluk of their basic and fundamental right to move freely from one place to another. Further, it is submitted that no material whatsoever was disclosed explaining the necessity of imposing this unreasonable restriction. There is no reason whatsoever, why a Prohibitory Order should be passed for the entire Taluk. The learned counsel after referring to Section 144 CrPC, submitted that none of the grounds mentioned under Sub-Section (1) Section 144 have been satisfied and no material has been placed before the District Collector to arrive at such satisfaction and no untoward incident has been reported in the past eight months when protests have been going on against the commissioning of the Atomic Power Plant at Koodankulam and the order has been promulgated on the same evening after the Cabinet of the State Government took a decision. It is further submitted that the procedure contemplated under Section 134 CrPC as regards service or notification of the order has not been followed and the order passed under Section 144 CrPC has not been made available to the people and has not been affixed in the area and therefore, there is a serious procedural violation which itself would be sufficient to revoke the order. The learned counsel placed reliance on the decision of the Constitution Bench of the Supreme Court in Madhu Limaye vs. S.D.M.Monghyr, AIR 1971 SC 2486 and submitted that for action under Section 144 CrPC, there should be urgency of the situation and the emergency must be sudden and the consequences sufficiently grave and it is submitted that all these aspects are not present warranting passing of the impugned order. The learned counsel also placed reliance on the decision of the Supreme Court in Gulam Abbas vs. State of U.P., AIR 1981 SC 2198, and submitted that the power under Section 144 CrPC is intended for preventing disorders, obstructions etc., and such power is conferred on the Executive Magistrate to perform the function effectively during emergency situation and there is no such emergency situation in Radhapuram Taluk warranting promulgation of an order under Section 144 CrPC.
4. Mr. N.G.R. Prasad, learned counsel for the other writ petitioner submitted that the place where the protest is being held, is situated about 15 k.ms. away from the Atomic Plant and there is no reason as to why the entire village should be barricaded and the people of the area have been deprived of the essential commodities such as milk, water, electricity and the children are unable to commute to the School to attend the examination, since public transport has been cut off. It is further submitted that any order under Section 144 CrPC is subject to Article
