Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Date:
04. 11.2013 Coram THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI Crl.R.C.Nos.1247 and 1263 of 2013 and M.P.Nos.1 and 1 of 2013 Guna @ Vella Guna @ Gunasekaran .. Petitioner in Crl.RC.1247 of 2013 S.Velayudham .. Petitioner in Crl.RC.1263 of 2013 V. The District Magistrate, Government of Puducherry, Office of the District Magistrate, Revenue Complex, New Saram, Puducherry. .. Respondent in both the revisions Criminal Revisions under Section 397 r/w 401 of Cr.P.C. to set aside the order dated 10.09.2013 and 17.09.2013 made in MC.Nos.71 and 115 of 2013 respectively on the file of District Magistrate, Puducherry. For Petitioner : Mr.M.Prabaharan in Crl.RC.1247 of 2013 Mr.Prakash Adiapadam in Crl.RC.1263 of 2013 For Respondent : Mr.V.Balamurugan. Additional Public Prosecutor (Pondicherry) COMMON ORDER
The Criminal revisions are filed by the petitioners by names Guna @ Vella Guna @ Gunasekaran and Velayudham respectively in both the petitions against the order made under Section 144(2) Cr.P.C. by the District Magistrate, Puducherry thereby prohibiting the petitioners from entering into Puducherry region for a period of two months except when the petitioners are summoned to attend the cases in any of the courts in Puducherry.
2. As the order impugned herein and grounds on which the impugned order is challenged and the core issue to be decided in both the revisions are similar in nature, both the revisions are disposed of by a common order.
3. From the facts made available herein, it is now seen that the petitioners Guna @ Vella Guna @ Gunasekaran and Velaydham are arrayed as one of the accused in different crime numbers for different offences on the file of different police station between 1994 and 2010 and between 1993 and 2011 respectively and while so, during the pendency of all the cases, the impugned orders came to be passed on 10.09.2013 and 17.09.2013 respectively on identical grounds.
4. For better appreciation and understanding the relevant portion of the order is reproduced as under : ".AND WHEREAS it is brought to the notice of the undersigned that you and your accompanies are likely to indulge in unlawful activities, obstruction and disturbance of peace and tranquillity causing damage to life and property and intimidation of general public. AND WHEREAS, based on the report laid before me, I am of the opinion that if you are allowed to reside within the limits of Puducherry, you will continue to indulge in serious offences like assault, murder, extortion, criminal trespass, intimidation, damages to public and private properties, obstructions, annoyance etc and disturb public peace and order and such situations cannot be handled effectively by taking recourse to usual procedures contemplated by law and hence, it is necessary that special provision under Section 144 of Cr.P.C is invoked to take action against you to prevent harm to life and properties of citizens and uphold public peace and order. And WHERAS, I am satisfied that you are an habitual offender; that your activities will endanger human life and properties and your presence is a threat to public tranquillity in Puducherry region and therefore, an immediate action is required for curtailing your illegal activities in the locality;".
5. The reading of the above orders would reveal that the following are the three grounds which compelled the authority concerned to invoke the special provision under Section 144 Cr.P.C. (i) the petitioners are the habitual offenders; (ii) the authority concerned is informed that the petitioners and their accomplices are likely to cause obstruction and peace and tranquillity; and (iii) if the petitioners are allowed to reside within the limit of Puducherry, they are likely to continue to indulge in serious offences and the same cannot be effectively handled by taking recourse to usual procedure.
6. The learned counsel for the petitioners in both the petitions would vehemently argue against the validity and enforceability of the orders impugned herein mainly on the grounds that (i) the impugned orders passed without any notice to the petitioners are in violation of the procedure laid down under law and the parties must be given notice and opportunity of being heard before passing any order except in cases of urgency; (ii) the impugned orders are not preceded by any preliminary enquiry in the course of which the copies of the documents relied upon by the authority concerned to arrive at subjective satisfaction are not furnished to the petitioners; (iii) as the special provisions under Section 144 Cr.P.C. can be invoked only under emergency situation when it becomes necessary for the Executive Magistrate to override, temporarily, private rights and the emergency must be sudden and the consequences must be sufficiently grave, to act even ex parte and no such situation is prevalent in both the cases; (iv) the orders are bereft of any particulars regarding material facts based on which the authority concerned arrived at subjective satisfaction regarding the circumstances warranting invocation of special provision under Section 144 Cr.P.C; (v) the restriction or prohibition imposed on the petitioners is unreasonable and is in violation of right of movement as enshrined under Article 19(1)(d) and (e) of the Constitution of India; and (vi) the order is subject to revisional jurisdiction under Section 397 Cr.P.C.
7. Per contra, the learned Additional Public Prosecutor (Pondicherry) would defend the impugned orders on the ground that (i) the revision petitions are not maintainable in view of the remedy provided under Section 144(5) of Cr.P.C in and under which the aggrieved person can approach the same authority to set aside, reside, alter or modify the order passed under Section 144(1) Cr.P.C; (ii) the impugned orders contain relevant facts and the material particulars and the grounds on which the subjective satisfaction is arrived at by the authority concerned; (iii) the order is only a regulatory and not prohibitory altogether for avoiding breach of peace and the law and order situation is under the domain of administrative authorities who are the best to assess and handle the situation depending upon the peculiar needs and necessities within their knowledge and the same shall not be interfered with unless the orders are patently illegal without jurisdiction or with ulterior motive and on extraneous consideration or political victimization of those in power.
8. Heard the rival submissions made on both sides.
9. It is not in dispute that the impugned order in both the petitions are passed by invoking the special provision under Section 144(2) Cr.P.C. It is equally not in dispute that the order made is ex parte without issuing any notice in writing to the petitioners against whom the order is passed and without holding any independent preliminary enquiry by the authority concerned before arriving at subjective satisfaction about the existence of emergent situation warranting invocation of section 144 Cr.P.C.
10. Before going into the merits and demerits of the case issue, regarding the validity and enforceability of the orders impugned herein, it is but necessary to decide the legal issue as to whether the impugned orders are amenable to revisional jurisdiction and as to whether the criminal revisions are maintainable against the impugned orders or else the aggrieved parties are to be directed only to resort to section 144(5) Cr.P.C. In this regard, the learned counsel for the petitioner would cite catena of Apex Court judgments, wherein the Hon'ble Apex Court was pleased to answer the same in the affirmative. The authorities cited on the side of the petitioners are :
1. AIR1981SC21981) (Gulam Abbas and others V. State of UP and others); 2.(2000) 7 SCC148(A.Sowkath Ali V. Union of India and others); 3.(2004) 4 SCC684(State of Karnataka and another V. Dr.Praveen Bhai Thogadia); and 4.(2012) 5 SCC1(Ramlila Maidan Incident, In Re); The authority cited on the side of the respondent is : AIR1961SC884(Larger Bench consisting of 5 judges of Supreme Court) (Babulal Parate V. The State of Maharastra and others).
11. In the cases above cited on the side of the petitioners as well as on the side of the respondent, the Hon'ble Supreme Court is of the view that the identical orders of the authorities concerned are subject to judicial review under given circumstances. Among the authorities cites above, the Constitutional Bench of the Hon'ble Supreme Court has, in AIR1961SC884cited on the side of the respondent, directly dealt with the power of the authority to pass an ex parte order and also has directly dealt with the revisional jurisdiction of this Court to entertain a revision petition for revising similar order made under Section 144. As in the present case, one of the issues raised before the Hon'ble Supreme Court is the right conferred on the aggrieved person to challenge the order of the learned Magistrate under Section 144. The same is dealt with in paragraph 23 by the Constitutional Bench of the Hon'ble Supreme Court. It is observed therein that though no appeal has been provided in the Code against the Magistrate's order under Section 144, the High Court has power under Section 435 read with Section 439 of the Code (Section 397 of the present Code) read with 439 of the Code to entertain an application for the revision of such an order. It is further observed therein that the powers of the High Court in dealing with a revision are wider enough to enable it to quash the order, which is not supported by the materials upon which, it is supposed to be based. The Hon'ble Supreme Court has while observing so referred to the decision of the Full Bench of the Lahore High Court reported in AIR1942Lah 171 (Full Bench) (Editor Tribune ..vs.. Emperor) for the legal principal laid down therein. Yet another ground on which the remedy of judicial review is upheld by the Hon'ble Supreme Court is that the penalty for infringing an order under Section 144 is provided in Section 188 of IPC and when, therefore, the prosecution is launched thereunder the validity of the order under Section 144 of Cr.P.C. could be challenged by way of revision under Cr.P.C. The Supreme Court by observing so negatived the contention that the remedy of the judicial revision is illusory.
12. Following the same judgment, the Hon'ble Supreme Court has in AIR1981SC21981) expressed the same view in paragraphs 22 and 23 of the judgment, wherein it is observed that such an order made by the Executive Magistrate is revisable under Section 397 of the Code. It is observed so by resorting to the explanation to that Section to the effect that all the Magistrates whether Executive or Judicial or whether exercising appellate or original jurisdiction are deemed to be inferior Courts for the purposes of the revisional power of the High Court or Court of Session. The Hon'ble Supreme Court has also in the same judgment compared the power under Section 144 of Cr.P.C with that of the power conferred on Bombay Police under Section 37 of the Bombay Police Act, 1951, which are parematerial of section 144 of Cr.P.C. and observed the nature of power under both provisions and the nature of function performed under both being the same, by parity of reasoning the order made under Section 144 of Cr.P.C., 1973 must be held to be amenable to extraordinary jurisdiction either under Article 32 or under Article 226 of the Constitution, if it violates or infringes any fundamental right. That being the well laid down legal principle by the Constitutional Bench of the Hon'ble Supreme Court, the contention that only remedy available to the petitioner is under Section 144(5) of Cr.P.C and the same is not amenable to the judicial remedy under revisional jurisdiction has to be necessarily negatived.
13. The next aspect to be considered is the manner in which the order is passed. It is seriously contended before this Court by the learned counsel for the petitioners that the orders are passed ex parte by exercising the power under Section 144(2) Cr.P.C and the impugned orders are passed without any emergency circumstance warranting such ex parte orders as such the impugned orders passed without any notice to the person against whom it is intended to be passed and without preliminary enquiry is not only against, but also in violation of fundamental right. In order to appreciate the contention so raised herein, it is but necessary to reproduce Section 144 (1) and (2) of the Criminal Procedure Code. ".144. Power to issue order in urgent cases of nuisance or apprehended danger. (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 fact of the case and served in the manner provided by section 134, direct any person to abstain from it 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 of 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 at-fray. (2) An order under this section may, in cases of' emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex-parte.". The combined appreciation of both Sections would well support the argument advanced by the learned counsel for the petitioners that the executive authority is empowered to pass ex parte order only under Section 144(2) Cr.P.C., and no such order can be passed without notice under Section 144(1) Cr.P.C.
14. In this context, the Hon'ble Supreme Court in the same judgment, referred to above, cited on the side of the petitioners as well as on the side of the respondent directly dealt with the power of the authority concerned to pass an ex parte order under Section 144(1) Cr.P.C. In 2012(5) SCC1case cited supra it is observed in paragraph 229 that if one reads the entire provision of Section 144 Cr.P.C, then the legislature itself has drawn a distinction between the cases of urgency, where the circumstances do not admit the serving of a notice in due time upon the person against whom such an order is directed and the cases where the order could be passed after giving the notice to the affected party. It is left to the discretion of the executive authority to examine each case as to whether the situation is emergent or not, on its own merits. It is observed in paragraph 230 of the same judgment as any order under Section 144 of Cr.P.C affects the right vested in the said person, it will not be unreasonable to expect the authorities to grant adequate time to implement such orders, wherever the circumstances so permit and the enforcement of the order in undue haste may sometimes cause greater damage than the good that it expected to achieve. Again it is observed in paragraph 319 of the said Judgment that Section 144 Cr.P.C. deals with immediate prevention and speedy remedy and therefore, before invoking such a provision, the statutory authority must be satisfied regarding the existence of the circumstances showing the necessity of an immediate action. Thus it is well laid down that the sine qua non for an ex parte order under Section 144 Cr.P.C is urgency requiring an immediate and speedy intervention by passing of the ex parte order and the order must set out the material facts of such emergent situation as the provision can be used only in grave circumstances for maintenance of public peace and that the efficacy of the provision is to prevent some harmful occurrence immediately and therefore, the emergency must be sudden and the consequences be sufficiently grave.
15. The next case in which the same legal stand is dealt with is 2004 (4) SCC684cited supra. The Hon'ble Supreme Court has in paragraph 10 of the said Judgment referred to Chapter X and the caption under Section 144 appears in Cr.P.C. It is referred to therein that Section 144 appears in Chapter X dealing with ".Maintenance of Public Order and Tranquility". and is a part of Sub-Chapter 'C' in Chapter X which is titled as 'Urgent Cases of Nuisance or Apprehended Danger' and the emergent order can be passed only when immediate prevention or speedy remedy is desirable. It is observed in paragraph 7 that exparte order can only be passed when quick decision as well as swift action is necessitated and in such cases it may not be justifiable to permit the authorities to give prior opportunity or consideration at length, of the pros and cons, when there is imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences, which it may result in if not prevented forthwith and which cannot be lost sight of. It is further observed therein that it is under such grave situation, decision to take prohibition action must be left to the discretion of those entrusted with the duty of maintaining law and order.
16. The next authority dealing with the same aspect is AIR1961SC884cited supra. In the case decided by the Supreme Court, it is categorically and clearly laid down in paragraph 10 of the Judgment that Sub-section (2) requires the Magistrate ordinarily to serve notice on the person against whom the order is directed and empowered to proceed exparte only where the circumstances do not admit of serving such a notice in due time. It is further observed therein that under Sub Section 1, the Magistrate himself has to form an opinion that there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable. Again the sub section requires the Magistrate to make an order in writing and state therein the material facts by reason of which the order made thereunder. It is observed in paragraph 22 that though in an appropriate case, the Magistrate is empowered to make an order under this Section exparte, the law requires that he should wherever possible serve a notice on the person or persons against whom that order is directed before passing that order. 17.Applying such legal principles laid down, to the facts of the present cases, it would definitely disclose that the present cases do not fall under urgent category cases, where the executive authority can resort to emergent ex parte order under Section 144(2) Cr.P.C. From the facts made available herein it is now seen that both the petitioners are arrayed as one of the accused in different cases. As per the details furnished herein in the form of tabular column, Guna @ Vellai Guna, who is the petitioner in Crl.R.C.No.1247 of 2007 is implicated in eight cases and out of eight cases, 5 are disposed of and he is acquitted in four cases and convicted in one case and three cases are pending investigation. As far as the other petitioner by name Velayudam, who is the petitioner in Crl.R.C.No.1263 of 2013 is concerned, he is as per the details furnished herein acquitted in four cases out of nine cases and one case ended in conviction and one case is compounded and one case is committed and two cases are pending investigation. The last case in which the accused are implicated are of the year 2010 and 2011 respectively. As a matter of fact, identical order as impugned herein was passed against the revision petitioner Guna in Crl.R.C.No.1247 of 2013 during 2011 at the time of election and the same was challenged in Crl.R.C.No.493 of 2011 and this Court has, after taking into consideration the facts and circumstances involved therein, set aside the impugned order by passing conditional order. Thereafter the petitioner was not involved or implicated in any other case and the impugned order came to be passed only during September 2013 against the petitioner under Section 144(2) Cr.P.C., ex parte.
18. As rightly argued by the learned counsel for the petitioners in both the cases, the impugned orders do not disclose any emergency situation to justify an ex parte order without serving any notice on or without giving an opportunity of being heard to the persons against whom the order is directed as contemplated under Section 144(1) Cr.P.C. Except stating that the accused is likely to indulge in unlawful activities, if he is allowed to reside within Pondicherry limits, Pondicherry region and the situation cannot be effectively handled by taking recourse to usual procedure, no other material factors based on which the ex parte order came to be passed is mentioned in both the impugned orders. As rightly angued by the learned counsel for the petitioners, the particulars furnished herein regarding the number and nature of disposal of cases against the petitioners and the allegations raised therein and number of cases disposed of and pending and the stage of those cases would not justify the conclusion arrived at by the authority concerned as if the petitioners are habitual offenders and they are likely to indulge in unlawful activities, obstruction, disturbance of peace etc. The authority concerned expressed his opinion by reproducing the words used in the relevant provision of law without disclosing the material factors based on which the decision is arrived at by the executive authority. The fact that out of 8 and 9 cases respectively filed against the petitioners most of the cases are disposed of in favour of the petitioners and few cases are pending investigation or initial stage would by itself demonstrate the non-application of mind of the authority concerned into the facts relevant for consideration before passing one such impugned order. It is repeatedly laid down in the judgments above cited that such preventive order restricts the right of freedom of movement of individual as guaranteed under Constitution of India and such right cannot be lightly interfered with, except under due process of law by observing all the legal principles as well as principles of natural justice.
19. It is equally well laid down that jurisdiction under Section 144 Cr.P.C., can only be exercised sparingly and only when the situation is such as stated above and the same warrants imminent and emergent action to prevent any present danger leading to grave consequences. The Hon'ble Supreme Court has in the judgment in AIR1961SCC884cited supra categorically stated in paragraph 26 that the test laid down in the Section is not merely ".likelihood". or ".tendancy". and the Magistrate must be satisfied that immediate prevention of particular act is necessary to counteract public safety etc. It is nowhere mentioned in either of the orders passed against both the petitioners that one such situation prevailed in the present case. In that event, the ex parte impugned orders passed without any emergency circumstance, are in violation of the principles of Fundamental Rights and is amenable to judicial review and is liable to be revised by this Court under the revisional jurisdiction. 20.The next serious aspect to be considered is the failure on the part of the Executive Magistrate to disclose the nature of the information received by the Magistrate and the nature of the document relied on by him which are referred to in paragraphs 3 and 4 of the impugned orders. It is specifically stated in paragraph 3 that the information regarding the unlawful activities is brought to the notice of the undersigned, but it is not further stated the source of information or nature of the information, whether the same is in writing or oral etc. If it is in writing both the petitioners are entitled to get the copies of the same and the failure to disclose the material particulars amounts to serious irregularity and infirmity. The next is about the report referred to in paragraph 4 of the impugned orders. Whether the report is from the police or revenue is not at all explained in the impugned orders. The copy of the report is not furnished to the petitioners and the copy of the report does not form part of the orders. It is observed by the Hon'ble Supreme Court in 2007 SCC148while dealing with the same issue under COFEPOSA Act that once a sponsoring / detaining authority relies on any document, non placement of the same would affect the subjective satisfaction of the detaining authority and would vitiate the entire order and all the documents which affects the mind of the authority are to be placed before the persons against whom the order is directed.
21. Thus the exparte order is not preceded by any preliminary enquiry conducted as contemplated under law by the Magistrate concerned before passing the ex parte orders and had the petitioners been furnished the details and given an opportunity of being heard, it would have satisfied the statutory norms and the omission to do so vitiates the very validity of the impugned order. As the very purpose of giving a notice is only to give them an opportunity of hearing, the petitioners are by passing such impugned orders now deprived of such valuable right. Though the respondent has in his counter and though the learned Public Prosecutor in the course of his argument sought to introduce new facts, which are according to them grave enough to base an order of prohibition as stated above, the new facts need not be as rightly argued by the learned counsel, looked into for deciding the validity, enforceabililty or otherwise of the impugned orders for the simple reason that the Supreme Court in paragraph 8 of the judgment reported in AIR1978SC8511) cited supra was of the view that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reason so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It is further observed that an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by additional grounds later brought out. Such a course is according to the learned Counsel is legally not permissible. Applying the same ratio, this Court is of the view that except the facts mentioned in the orders no new ground can be permitted to be raised in the course of argument to defend the legality of the impugned orders and the orders are not only against the proceedings laid down under statute, but is in violation of the principles of natural justice and are also absolutely lacking in material particulars based on which the subjective satisfaction is arrived at by the authority concerned.
22. The Hon'ble Supreme Court though in the judgments above cited has upheld the legislative intention to preserve public peace and tranquility without lapse of time, by acting emergently, if warranted, thereby giving paramount importance to the needs of the society by even overriding temporarily private rights of the individual keeping in view the public interest, the Hon'ble Apex Court, at the same time, strike the balance between the social needs and public interest on one hand and private right of the individual on the other hand by imposing certain restriction on the executive authority in exercising the powers under Section 144 of Cr.P.C. It is observed by the Hon'ble Supreme Court that the revisional jurisdiction 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. It is observed that the exercise of powers muse be in aid of its rights and not to interfere with the lawful exercise thereof.
23. Viewing from any angle, the impugned orders passed by the authority concerned ex parte are without any emergent situation and without any notice and enquiry and without disclosing material facts, based on which the satisfaction is arrived at and without furnishing the copies of the information and the report relied on by the authority concerned and are hence contrary to the well laid down principle and contrary to the procedure laid down under the law and stand vitiated by perversity and serious irregularity and infirmity and are, hence liable to be set aside.
24. In the result, both the revisions stand allowed and the impugned orders are set aside. Consequently, connected Miscellaneous Petitions are closed. 04.11.2013 Index :Yes/No Internet : Yes/No mra K.B.K.VASUKI,J mra To The District Magistrate, Government of Puducherry, Office of the District Magistrate, Revenue Complex, New Saram, Puducherry. Crl.R.C.Nos.1247 and 1263 of 2013 and M.P.Nos.1 and 1 of 2013 04.11.2013