Sushree Chittaroopa Palit and Another vs State of M.P.

S.S. Dwivedi, J.

Applicants have preferred this revision u/s 397/401 of Cr. P.C. aggrieved by the order dated 4-12-2004 passed by District Magistrate, Khargone u/s 144 of the Criminal Procedure Code.

Briefly stated facts of the case are that District Magistrate, Khargone on 4-12-2004 looking to the law and order situation at Khargone and at Bhikan village due to some demonstration by villagers against the construction of Upper Beda Dam at Narmada river passed the prohibitory order u/s 144 of Cr. P.C. prohibiting the assembly of five or more persons at a particular area in Khargone city as well as near concerned Upper Beda Dam area. Applicants have challenged the aforesaid prohibitory order passed by the District Magistrate, Khargone by this revision petition.

Having heard learned counsel for the applicants as well as the Govt. Advocate for the State and perused the record.

It is submitted by learned counsel for the applicants that aforesaid prohibitory order u/s 144 of Cr. P.C. has been passed by the District Magistrate without applying the mind according to law and procedure and illegally passed the aforesaid prohibitory order. Whereas, the applicants being leader of Narmada Bachao Andolan obtained permission from the Sub-Divisional Magistrate to assemble before the National Women Commission on 5-12-2004 to plead their causes against the construction of Upper Beda Dam, therefore, prayed for declaration the aforesaid prohibitory order passed by the District Magistrate as illegal and erroneous, aggrieved by which, the applicants have preferred this revision before this Court.

Learned Government Advocate appearing for the State submitted that prohibitory order has been passed for a period from 4-12-2004 to 6-12-2004 only and after the aforesaid period completed on 6-12-2004, the order already has been executed and in that circumstances, the revision petition has become in fructuous because of the compliance of the aforesaid order by the concerned. Similarly, it is also submitted that u/s 144 of Cr. P.C. the prohibitory order can be passed by the District Magistrate after assessing the situation and other material circumstances with regard to the law and order situation of the place concerned and this cannot be challenged by this revision petition filed u/s 397 of Cr. P.C. hence, prayed for dismissal of the revision.

On consideration of rival contention of both the counsels, first of all it is apparent that applicants have challenged the impugned order dated 4-12-2004 which is made effective only for a period from 4-12-2004 to 6-12-2004 and after completion of the aforesaid time period of prohibitory order, no useful purpose will be served by this revision petition as the impugning order has already been made effective for the aforesaid period.

Learned Sr. Counsel Shri Bagdiya placed reliance on the earlier decisions of the various High Courts reported in (Koolli) Satyanarayana Choudhari v. Emperor AIR 1931 Mad 236, (Devatha) Sriramamurty v. Emperor AIR 1931 Mad 242, In Re: Ardeshir Phirozshaw Murzban, , Taturam Sahu Vs. The State of Orissa, and Gopalji Prasad Vs. State of Sikkim and Others, and submits that on the basis of aforesaid case laws on the point, the prohibitory order passed by the District Magistrate under the provisions of Section 144 of Cr.P.C. can be challenged under the provisions of Section 397 of Cr.P.C.

On perusal of the aforesaid cases on the point it is clear that there is no dispute that prohibitory order passed by the District Magistrate under the provisions of Section 144 of Cr.P.C can be challenged by the aggrieved party before the High Court and the revision petition cannot be dismissed only on the ground that time period of prohibitory order has already been passed and on that ground, revision petition cannot be held to be in fructuous.

Before this Court only point for consideration whether the prohibitory order passed by the District Magistrate is on the basis of his subjective satisfaction or not.

On perusal of the order it is apparent that Superintendent of Police. Khargone informed the District Magistrate that number of persons assembled before the National Women Commission and this will create problems for law and order situation in the village concerned, therefore, prayed for prohibitory order u/s 144 of Cr.P.C. but by this order it has not been prohibited that aggrieved persons may not appear before the Chairperson / President of National Women Commission who was hearing the problems of the concerned people at the specified place for which necessary permission was also granted for appearance before the concerning Commission.

By this revision petition, the applicants tried to challenge subjective satisfaction of the District Magistrate for passing prohibitory order u/s 144 of Cr.P.C. but at the revisional stage, the proof of the subjective satisfaction of the concerning authority cannot be looked by the revisional court. On this point, reliance can be placed on the decision of the Apex Court reported in State of Karnataka and Another Vs. Dr. Praveen Bhai Thogadia, ; wherein the Hon''ble Apex Court while dealing with the subjective satisfaction of the authority concerned for passing of the prohibitory order held here as under :-

Communal harmony should not be made to suffer and be made dependent upon the will of an individual or a group of individuals, whatever be their religion, be it of a minority or that of the majority. Persons belonging to different religions must feel assured that they can live in peace with persons belonging to other religions. While permitting holding of a meeting organized by groups or an individual, which is likely to disturb public peace, tranquility and orderliness, irrespective of the name, cover and methodology it may assume and adopt, the administration has a duty to find out who the speakers and participants are and also to take into account previous instances and the antecedents involving or concerning those persons. If they feel that the presence or participation of any person in the meeting or congregation would be objectionable, for some patent or latent reasons as well as the past track record of such happenings in other places involving such participants, necessary prohibitory orders can be passed. Quick decisions and swift as well as effective action necessitated in such cases may not justify or permit the authorities to give prior opportunity or consideration at length of the pros and cons. The imminent need to intervene instantly, having regard to the sensitivity and perniciously perilous consequences it may result in if not prevented forthwith, cannot be lost sight of. The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life preservation of public order and rule of law. At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of courts

Similarly in another decision of the Apex Court reported in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, ; the Hon''ble Apex Court while interpreting the powers conferred u/s 144 of Cr.P.C. held here as under :-

The gist of action u/s 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences. As it is possible to act absolutely and even ex-parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no justification. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial scrutiny in the need for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order u/s 144, Criminal Procedure Code cannot be passed without taking evidence: see Jagrupa Kumari v. Chotey Narain Singh which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquility, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safely have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. Insofar as the other parts of the section are concerned the keynote of the power is to free society from menace of serious disturbance of a grave character. The section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matter must, fall within the restrictions which the Constitution itself., visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave propositions to bring the matter within interest of public order.

In view of the decisions of the Apex Court, on perusal of the facts of the present case, it is apparent that District Magistrate after subjective satisfaction on the basis of the report submitted the Superintendent of Police, Khargone came to the conclusion that large assembly of the persons appeared before National Women Commission will effect law and order situation of the places concerned; passed the aforesaid prohibitory order u/s 144 of the Criminal Procedure Code then this order cannot be held to be illegal or improper which can be interfered with by this Court.

Considering the aforesaid case laws on the point and on perusal of the total circumstances of the case, the impugned prohibitory order passed by the District Magistrate, Khargone does not appear to be illegal or perverse which can be set-aside by this revision petition.

Resultantly, revision petition preferred by the applicants being devoid of any merit is dismissed accordingly.