Ratanlal & Dhirajlal, Code of Criminial Procedure

Administrative order.
An order under this section is essentially an executive (Police) function. The power conferred on
the State Government is an independent power and it is an executive power. An order under this
section is administrative in nature and hence, it is neither judicial nor quasi-judicial. So such an
order is amenable to writ jurisdiction if it violates any fundamental rights. An order under section
144 is administrative in nature and not judicial or quasi-judicial.1
Scope and application of section 144.
The fourth branch of preventive jurisdiction deals with cases, urgent in their character, of either
nuisance or apprehended danger. The nuisance referred to is public nuisance, and the danger
apprehended is disturbance of the public tranquillity, or riot, or affray. The very urgency of the
case demands the laying aside of the usual formalities and preliminaries to the making of an
order. Cases of ordinary public nuisance, shorn of their urgency, have been dealt with earlier.
Orders under this section can be issued ex parte; but they are always temporary in their duration,
for they remain in force only for two months, and, only in exceptional cases, the State
Government can enhance the duration up to a further period of six months. The preservation of
the public peace and tranquility is the primary function of the Government and the power under
section 144 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 public interest and private rights the former must prevail. 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 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 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 ordinarily
in defence of legal rights, if there be such and the lawful exercise thereof rather than in
suppressing them. The Magistrate’s action should be directed against the wrong-doer rather
than the wronged. 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
1
Ratanlal & Dhirajlal, Code of Criminial Procedure
militant. Legal rights should be regulated and not prohibited altogether for avoiding
breach of peace or disturbance to public tranquility.2
Section 144 in The Code Of Criminal Procedure, 1973

144. Power to issue order in urgent cases of nuisance of 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 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, of
an affray.
(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.
(3) An order under this section may be directed to a particular individual, or to persons
residing in a particular place or area, or to the public generally when frequenting or
visiting a particular place or area.

Ratanlal & Dhirajlal, Code of Criminial Procedure

Uploaded by

Copyright:

Available Formats

Ratanlal & Dhirajlal, Code of Criminial Procedure

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ratanlal & Dhirajlal, Code of Criminial Procedure

Uploaded by

Copyright:

Available Formats

Administrative order.

Scope and application of section 144.

Section 144 in The Code Of Criminal Procedure, 1973

You might also like