Mohd Arif Khan vs District Magistrate, Lucknow and others

S.N. Sahay, J.—This bunch of writ petitions is directed against the directives issued by the Election Commission of India in its circular dated July 6, 1993 and the order of District Magistrate, Lucknow dated October 18, 1993.

In order to ensure smooth and peaceful conduct of elections and maintenance of law and order situation during elections, the Election Commission has issued the circular dated July 6, 1993 stating that the Commission has decided on the basis of experience in the recent past and discussions held with Chief Electoral Officers to adopt at all future general and byeelections the following steps in furtherance of the interests of free, fair, peaceful and smooth conduct of the poll. These steps are designed to safeguard against (1) the evil and corrupt practices of booth capturing, and (2) intimidation and undue influence of voters. Amongst the various steps which are to be taken in pursuance of the decision of the Election Commission it is slated in item No. 6 as follows :

"A firearms licence holders shall be directed to deposit all their firearms with the District Administration during the period of one week from the day after the last day of withdrawal of candidature and this will be firmly enforced. The firearms would remain deposited till a week after the declaration of results. If in the view of the Director General of Police, any person has a real threat to his personal/property, he should be provided with necessary security by the police but he should under no circumstances be allowed to carry his own personal firearms, if he has any, or be accompanied by anyone with any firearms, licensed or otherwise. This would ensure checking of carrying of firearms during the compaign period generally (thus minimising incidents of serious disturbances of election meetings) and specifically on the day of polling and counting."

It is provided in item No. 7 of the said circular that the orders prohibiting carrying of any firearms shall be issued immediately after the election process starts with the issue of the notification calling the elections. The circular ends with the observation that

"The Commission directs that the Central and State Governments should strictly implement the above measures. They are required to issue detailed and comprehensive instructions to all concerned authorities to take the proposed steps and assist the election authorities, in the peaceful and smooth conduct of free and fair poll. A copy of the instructions issued in this behalf should be endorsed to the Commission by 3171993."

On October 11, 1993 another circular was issued by the Election Commission on the subject of general elections to the Legislative Assemblies and directions of the Commission on surrender of arms. It is stated in this circular that in exercise of powers conferred on it by Article 324 of the Constitution of India and all other powers enabling it in this behalf, the Election Commission of India hereby directs that in the interests of free, fair, peaceful and smooth conduct of the general elections to the Legislative Assemblies of the above States and Union Territory, the following steps designed to safeguard against corrupt practices of booth capturing and intimidation and undue influence of voters shall be taken by the State Governments and all authorities concerned. The reference to States and Union Territory includes a reference to Uttar Pradesh also. With regard to deposit of firearms the circular contains the following directions in items nos. 3 and 4 :

"3. All firearms licence holders shall be directed to deposit all their firearms with the District Administration during the period of one week from the day after the last day for withdrawal of candidatures and this shall be firmly enforced. The firearms shall remain deposited till a week after the declaration of results. If in view of the Director General of Police, any person has a real threat to his person/property, he should be provided with necessary security by the police but he should under no circumstances be allowed to carry his own personal firearms, if he has any, or be accompanied by anyone with any firearms, licensed or otherwise. This will ensure checking of carrying of firearms during the compaign period generally (thus minimising incidents of serious disturbances of election meetings) and specifically on the day of polling and counting.

The orders prohibiting carrying of any firearms shall be issued immediately after the election process starts with the issue of the notification calling the elections."

In para2 of the circular it is stated that the Commission directs that the Central and State Governments shall strictly implement each and every of the above measures. They are required to issue detailed and comprehensive instructions to all concerned authorities to take the proposed steps and assist the election authorities in the peaceful and smooth conduct of free and fair poll. A copy of the instructions issued in this behalf should be endorsed to the Commission by 15101993. It is further stated in para3 of the circular that these directions must be scrupulously followed and any violation will be viewed seriously and, appropriate action will be taken, including disciplinary action against guilty officials.

The State Government issued a notification dated October 18, 1993 to the effect that it has been decided to hold general elections for constituting a new Legislative Assembly and the Election Commission has recommended that a notification may be issued for holding election on November 18, 1993. Consequently, the said date is appointed as the date of election. After the issue of this notification the District Magistrate, Lucknow has passed the impugned order dated October 18, 1993 under Section 144 CrPC directing the licensees to deposit their firearms. The order passed by the District Magistrate reads as follows :

Before we proceed to examine the contentions of the parties, it may be convenient to state that counteraffidavit has been filed by the District Magistrate, Lucknow, but no counteraffidavit has been filed on behalf of the Election Commission. Dr. Ashok Nigam, who appeared on behalf of the Election Commission, however, stated that the directions contained in the circular of the Election Commission dated October 11, 1993 have been modified by a subsequent circular dated October 20, 1993. He has placed on record a Photostat copy of the circular dated October 20, 1993. This circular says that in partial modification of the directions issued on October 11, 1993 the Election Commission, in exercise of powers conferred on it by Article 324 of the Constitution and all other powers enabling it in this behalf, directs that for directions (2) and (3) in paragraph 1 thereof the following directions shall be substituted. Since we are concerned with directions under item No. 3 it may be relevant to refer to that part of the circular only. It is as follows :

"(3) The District Administration shall identify sensitive areas and issue orders for selective impounding of licensed arms held with dubious elements in these sensitive areas during the period of one week from the day after the last date for withdrawal of candidatures and these shall be firmly enforced. These orders of impounding shall remain effective till a week after the declaration of results. Prohibitory orders Under section 144 of CrPC shall be issued for an adequately long period banning the carrying of even licensed arms. If, in the opinion of the Director General of Police, any person has a real threat to his person/property he should be provided with necessary security by the police ; but he should, under no circumstances, beallowed to carry his own personal firearms, if he has any, or be accompanied by any one with firearms, licensed or otherwise. This Will ensure checking of carrying of firearms during the compaign period generally (thus minimising instances of serious disturbances of election meetings) and specifically on the day of polling and counting."

We have heard the learned counsel for the petitioners and learned Chief Standing Counsel on behalf of the opposite parties nos. 1 to 5 and 7 in Writ Petition No. 4782 (MB) of 1993 and Dr. Ashok Nigam, Senior Standing Counsel, Central Government on behalf of the Chief Election Commissioner, opposite party No. 6. After hearing the learned counsel for the parties and perusing the record, we passed the following order in their presence:

"We have heard the learned counsel for the parties at length. We are satisfied that the impugned order dated 18101993 passed by the District Magistrate, Lucknow contained in Annexure No. 3 to the writ petition and AnnexureA4 to the counteraffidavit ''of opposite party No. 1 are liable to be quashed, Therefore, for reasons to follow, we allow the writ petition and quash the aforesaid impugned order subject, however, to the observation that it will be open to the opposite party No. 1 to pass such order afresh in his discretion in accordance with law as may be considered by him appropriate and warranted by the circumstances."

We now proceed to give our reasons in support of the said order.

It will appear from a perusal of the impugned order dated October 18, 1993 passed by the District Magistrate, Lucknow that this order has been passed by him under Section 144 CrPC on the basis of the directives issued by the Election Commission. He has referred in counteraffidavit to the circulars of the Election Commission dated July 6, 1993 and October 11, 1993 and has stated in para 6 (ii) of the counter affidavit that keeping in view the fact that polling for elections to the Assembly Constituencies in the Lucknow District is to be held on 18111993 and the directions issued by the Election Commission of India in the interests of free, fair, peaceful and smooth conduct of General Elections and the steps designed to prevent and safeguard against corrupt practices of booth capturing and intimidation and undue influence of the voters, the deponent considered it necessary to take preventive and prohibitory action and under prevailing circumstances to ensure free and fair poll and maintenance of public peace and security and public order, the deponent made prohibitory orders under Section 144 CrPC and promulgated them on 18101993. It may be mentioned that no attempt has been made on behalf of the opposite parties to justify the impugned order dated October 18, 1993 under any provision of law except under Section 144 CrPC under which it purports and is professed to have been passed.

The learned Chief Standing Counsel has invited our attention to Babulal Parate vs. State of Maharashtra AIR 1961 Supreme Court 884, Madhu Limaye vs. Sub Divisional Magistrate, Monghyr AIR 1971 Supreme Court 2486, Md. Gulam Abbas vs. Md. Ibrahim (1978) 1 Supreme Court Cases 226 and Gulam Abbas vs. State of U.P. AIR 1981 Supreme Court 2198 in which the constitutional validity and scope of the provisions of Section 144 CrPC have been considered. It will be sufficient to mention for the purposes of this case that the provisions of Section 144 CrPC were held to be valid and it has been ultimately held that an order passed under that Section is an administrative order and not a judicial or quasi judicial order and that the order may be challenged by the aggrieved person by means of appropriate proceedings, whether the order is passed ex parte or after notice to the parties. In this connection, particular reference may be made to the 1981 case of Gulam Abbas cited above.

The material portion of Section 144 CrPC, relevant to for the purposes of this case, reads as follows :

"(1) In cases where, in the opinion of a District Magistrate, a Subdivisional 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 the 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.

(2) An order under this section may, incases 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 party or 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."

The above provisions will show that the conditions precedent for taking action under Section 144 is that in the opinion of the District Magistrate or other concerned Magistrate, there is sufficient ground for proceeding under this Section and immediate prevention or speedy remedy is desirable. In the instant case it is stated in the impugned order that under the directive of the Election Commission it is necessary to take preventive and prohibitory measures for holding free, fair and peaceful election and hence the order is passed under Section 144. The District Magistrate has nowhere stated in the impugned order, either expressly or impliedly, that in his opinion there is sufficient ground for proceeding under that section and immediate prevention or speedy remedy is desirable. The directions or guideline issued by the Election Commission cannot constitute sufficient ground nor can be a substitute for the opinion of the District Magistrate. The order passed under Section 144 must state the material facts and that gives a clear indication that the District Magistrate shall form his opinion on the basis of those facts. The impugned order does not state the material facts of the case as well. We find that the condition precedent for taking action under section 144 has not been fulfilled in the present case and, therefore, the impugned order is without jurisdiction and liable to be struck down.

The impugned direction has been issued by the Election Commission under Article 324 of the Constitution. Under Article 324, the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and to the State Legislature of every State and of elections to the offices of President and Vice President held under the Constitution is vested in the Election Commission. It has been settled by a catena of decisions of the Supreme Court that the use of the expression "conduct of elections" in Article 324 specifically points to wide meaning. In the wide sense, the word is used to connote the entire process culminating in a candidate being declared elected, which consists of several stages and it embraces many steps. The words "superintendence, direction and control" are wide enough to include all powers necessary for the smooth conduct of elections. Even so, the general powers of superintendence, direction and control of the elections vested in the Commission under Article 324(1) are subject to any law made under Article 327 or under Article 328 of the Constitution The Election Commission has no unlimited and arbitrary powers. It is clothed with powers of an executive charged with the duty of securing the due conduct of elections. It cannot take upon itself a purely legislative activity. Article 324 operates in areas left unoccupied by Legislation and where the Act or the Rules are silent, the Commission has no doubt plenary powers under Article 324 to give any direction in respect of conduct of election. (See, for instance, N.P. Ponnuswami vs. Returning Officer AIR 1952 Supreme Court 64 ; A.C. Jose vs. Sivan Pillai (1984)2 Supreme Court Cases 656; Kanhaiya Lal Omar vs. R.K. Trivedi (1985)4 Supreme Court Cases 628). It follows that the Election Commission cannot override Legislative enactments and has no jurisdiction under Article 324 to interfere with the discharge of statutory functions, or to direct or control the exercise of statutory powers, duties, functions and discretion by the concerned statutory authorities.

The power of the District "Magistrate or any other concerned Magistrate to take action under Section 144 CrPC is discretionary. The discretion is to be exercised according to law. A person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider and must be guided by relevant considerations and not by irrelevant or extraneous considerations. (See Padfield vs. Minister of Agriculture (1968) 1 All ER 694). So, if the District Magistrate does not use his own discretion and acts merely on the directions of some other authority, his decision will be vitiated by nonapplication of mind and it cannot stand.

If the District Magistrate or other concerned Magistrate intends to take action under Section 144, he should himself consider the material facts of the case and form a bonafide opinion on relevant considerations whether there is sufficient ground for proceeding under this section and whether immediate prevention or speedy remedy is desirable. If in the opinion of the Magistrate concerned, such a situation exists, then he may 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. The precise direction will have to be shaped and issued to meet the situation; but in determining the nature of the specific direction, the Magistrate will have to consider whether the direction is likely to prevent, or tend 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. In other words, the direction must bear a rational connection with the objects specified in the section, for which it is issued. The scope of section 144 CrPC cannot be enlarged or altered by an executive order under Article 324 nor positive directions as contained in the impugned circulars dated July 6, 1993 and October 10, 1993 may be issued for controlling the discretion of the Magistrate under Section 144 or directing him to use the section in a certain manner and pass particular orders. If the Magistrate takes action on the basis of such directions, his action will be liable to be struck down as being not in conformity with law. The Magistrate will have to use his own discretion, and take action accordingly, as discussed above, treating the directives under Article 324 to be suggestive or recommendatory entitled to due weight and utmost consideration.

In Purtabpore Company Ltd. vs. Cane Commissioner of Bihar 1969(1) Supreme Court Cases, 308, the order passed by the Cane Commissioner under Sugar Cane (Control) Order, 1966 was quashed. It was observed that the power exercisable by the Cane Commissioner under clause 6(1) is a statutory power. He alone could have exercised that power. While exercising that power he cannot abdicate his responsibility in favour of any one, not even in favour of the State Government or the Chief Minister. It was not proper for the Chief Minister to have interfered with the functions of the Cane Commissioner. In this connection reference was made to the earlier cases of Commissioner of Police vs. Gordhandas Bhanji (1952) SCR 135 and State of Punjab vs. Hari Krishan Sharma AIR 1966 SC 1081. There are other cases also vide Olga Tell is vs. Bombay Municipal Corporation AIR 1986 Supreme Court 180 and Express Newspapers Pvt. Ltd. vs. Union of India AIR 1986 Supreme Court 872, which point towards the same direction. This view has also been taken by this Court in B.R.S. Factory vs. State of U.P. 1970 ALJ 768 in which it has been held that where a statute casts a duty upon a particular officer or invested him with exercise of a discretion, then that duty must be performed and that discretion exercised by the officer and by no one else. The manner of the performance of the duty and exercise of the discretion cannot be controlled by any other authority.

We have accordingly come to the conclusion that the impugned order dated October 18, 1993 passed by the District Magistrate in the instant case merely on the basis of the directive of the Election Commission and not on the basis of his own opinion suffers from nonapplication of mind and cannot be upheld. The Election Commission has jurisdiction to issue appropriate directions within the scope of Article 324 with regard to conduct of election, but cannot control the exercise of power or discretion by a statutory authority under the provisions of the law, conferring power on it. Perhaps this aspect of the matter has been appreciated by the Election Commission also necessitating it to issue revised directions in its circular dated October 20, 1993. The impugned order is, therefore, liable to be quashed.

Before we advert to another point, it may be desirable to refer to the contention of the petitioners that the jurisdiction under Section 144 CrPC is to issue direction to 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. But in the guise of an order passed under Section 144, the Magistrate has no jurisdiction to issue positive directions for a person for doing a certain act. Reference has been made in this connection to Kusum Kumari Debi vs. Hem Nalini Debi AIR 1933 Calcutta 724 in which it has been held that a Magistrate is only entitled under Sec 144 to make restrictive order preventing the opposite party from doing an act but it does not enable him to make a mandatory order directing the opposite party to do some act. Consequently that party is under no obligation to obey such an order and his conviction for disobeying such an order under Section 188 IPC is unsustainable. The case of Ramanlal Bhagilal Patel vs. N.H. Sethna 1971 CrLJ 435 has also been referred to in which it has been held that a direction to do positive act, namely, to remove oneself from a specified area is something which is not permissible on the plain terms of Section 144(1) CrPC. Relying on these conditions, the petitioners have urged that no positive direction can be issued under Section 144 for depositing firearms.

The petitioners have also contended that the impugned order has the effect of causing the licences for the firearms to be suspended or cancelled for the time being and since the direction has not been issued in accordance with the relevant provisions of the Arms Act, the same cannot be enforced. In the view, that we have taken with regard to the validity of the impugned order, it is unecessary to express any opinion in this contention. We would, however, like to observe that the provisions of Arms Act and CrPC are independent of each other.

The petitioners have also prayed that the directive of the Election Commission contained in the circular dated July 6, 1993 may also be quashed. Since another circular has been issued on October 11,1993 and the same has been modified on October 20, 1993, it is not necessary to pass any specific order with regard to the circular of July 6, 1993.

We have no doubt in our mind that the democracy being the basic feature of our Constitution, it must be ensured that free, fair and peaceful elections are held and for that purpose the Constitutional authorities as well as other authorities must have the fullest scope for taking appropriate action in exercise of their powers according to their discretion under the Constitution and the existing laws. We have, therefore, made it clear that even after the quashing of the impugned order dated October 18, 1993 it will be open to the District Magistrate to take such action in accordance with law, whether under Section 144 CrPC or otherwise, as he considers necessary and appropriate in his discretion in the circumstances of the case.

It is for these reasons that we have passed the order indicated earlier allowing the writ petitions and quashing the impugned order dated October 18,1993 and leaving it open to the District Magistrate to take appropriate action according to law in future.