Kishan Lal Chauhan vs State of U.P. and Others

S.K. Phaujdar, J.—In the above applications the same order dated 11.8.98 recorded by the City Magistrate, Mathura, u/s 144. Code of Criminal Procedure has been challenged and as such the two matters were heard together and are being disposed of by this common judgment.

The first mentioned application was initially filed as a writ petition hearing No. 26633 of 1998 and was accordingly presented be fore a Division Bench. Subsequently, it was converted to one u/s 482, code of Criminal Procedure and has been registered under the present number.

The second mentioned application was initially filed u/s 482. Code of Criminal Procedure jurisdiction. It was then made a writ petition and was again converted to one u/s 482, Code of Criminal Procedure and the present number has been attributed to it.

The order impugned in both these applications stand annexed in Annexure-Al to the second mentioned application. Through this order, the City Magistrate, Mathura, indicated that he had perused the reports of the police officers and was of the opinion that it was necessary to stop business transactions in certain shops within the Krishna Janambhoomi premises at Mathura, wherein an Idgah is also situated as a question of upkeep of peace and law and order was involved. It was stated in the order that the shops, 31 in number, for which the order was issued, were situated within the Janambhoomi premises at Mathura, and the traders in those shops used to bring their commodities every day from outside and carry them back again. Checking at the main gate was there but it was not feasible to check every material brought in, especially those which were in closed receptacles. It was apprehended that as a result of failure of full checking, a serious threat to the security of the Janambhoomi premises and the Shahi Idgah Masjid might arise (Tfuft Tofu 3TCF7 Fl PcTl f). It was further indicated that if any explosion or Ors. Serious instance occurred within the premises; it will not only disturb the security of the premises but also of the State and the whole country, giving rise to communal tension. It was indicated that the shops in the Krishna Janambhoomi premises were under the occupation of the traders of the Hindu Community owing allegiance to different Hindu Organisations and it was possible that some particular organisations

Only upon these apprehensions, the City Magistrate felt that all these 31 shops should stop their business completely and should vacate the shops in view of the maintenance of security and peace, and the Magistrate expressed satisfaction with the opinion of the Superintendent of Police, Mathura that a great rush of pilgrims was expected on the Janmashtami day (15.8.98) and, as such, it was absolutely necessary to stop with immediate effect any business transaction in those shops and to get them vacated on a priority basis. The order also indicated that the Supreme Court had directed in Writ Petition No. 131 of 1997 that for protection of the Krishna Janam Bhoomi and Shahi Idgah Masjid and necessary steps could be taken by the State Government and any order to the contrary by a Court subordinate the Supreme Court would not be effective. By this order, the City Magistrate had forbidden the following:

(1) Running business in the aforesaid 31 shops bearing specific numbers as indicated therein;

(2) Opening the shops or bringing any commodities thereto or taking out the same there from ;

(3) Entry into the Janambhoomi premises with fire-arms and Ors. dangerous arms or materials for instigating anybody from doing it, barring the officers deputed for keeping land and order ;

(4) Organising any meeting within the premises or outside, making out exciting speeches or publishing pamphlets or papers or printing any material to give vent to religious sentiments or communal tension ; and (5) Spreading any rumour or allowing Ors. to spread rumours.

As a question of public security and peace was involved, the order was passed ex parte indicating therein that the same would be effective from 12.8.1998 till 11.10.1998. In their application, the applicants in the above two cases indicated that the Krishna Janambhoomi premises are managed by a committee known as Krishna Janamsthan Seva Sansthan (in short, "Sansthan"). It was stated that the Sansthan was out to evict shopkeepers by hook or crook. Suits were filed before the Small Causes Courts for evicting these shopkeepers from the aforesaid shops on the ground of termination of their licensees. The Court found that the applicants were not licenses or trespassers but were tenants in respect of the premises under their possession, and the suits were not maintainable under the Provincial Small Causes Courts Act. The Sansthan went up in appeal before the District Judge but the lower court''s order was confirmed. Subsequently, the order u/s 145(1) of the code of criminal Procedure (in short, the Code) was passed by the City Magistrate, Mathura, in March, 1995 on the basis of the police report. The High Court was approached in a criminal revision and the order of the City Magistrate was stayed.

It was asserted in the instant applications that having failed to achieve their goal, the Sansthan got the State machinery moved to make an amendment in the rent control legislation and the amendment was also challenged in C.M.W.P. No. 10833 of 1995 and the Sansthan was restrained from dispossessing the tenants otherwise than in accordance with law. It was stated that the attempt to oust them has taken the words shape by way of making an order u/s 144 of the Code.

It was further stated that no case of particular emergency was at all made out nor did the Magistrate indicate such a satisfaction before recording the order in question. It was further argued that the Supreme Court''s order spoken of in the impugned order could not be interpreted to mean that even a non-maintainable proceeding could be drawn up for the premises. The order was described as tainted with mala fide.

On behalf of the State, again the judgment of the Supreme Court was relied upon and it was stated further that it is the subjective satisfaction of the Magistrate who is the keeper of the law and order at the spot to draw up a proceeding u/s 144 of the Code and if materials were there before him by way of reports from the police or otherwise, the High Court could not interfere into his satisfaction. It was stated further that the applicants had ample opportunity of alternative remedy by way of applications Under Sections 145 (5) and (6) of the Code as also by way of revision and, in fact, one of the parties affected by the order had already preferred a revision before the Sessions Judge at Mathura. There is, however, no dispute that none of the present applicants have preferred any revision or any application u/s 144 (5) or (6) of the Code.

The judgment of the Supreme Court appears to be the sheet-anchor of the action taken by the Magistrate as also of the argument of the State. The judgment was recorded in W.P. (Civil) No. 541 of 1995 and the Supreme Court had observed:

"We have no doubt that the State and the Central Government will do everything that is necessary to protect the places of worship, i.e., the two mosques in question, and if for that purpose, they need any directions from this Court on account of impediment, they would be at liberty to move this Court.

We, for the present, therefore, do not deem it necessary to give any direction but as stated above, if any directions are necessary it would be open to either of the Governments or the concerned (sic) to approach this Court "

Upon a subsequent application filed by Mohd. Aslam alias Bhurey as in, 1997 5 SCC 475 . the Supreme Court further observed that an order recorded by a subordinate court for maintenance of status quo had caused some difficulty as the administrative and police officials thought that on account of the status quo order, they were not in a position to strengthen the barricades, add to them or improve upon them. The Supreme Court expressed an opinion that there was no reason why the authority should have thought that the status quo order prevented them from strengthening the barricades. The Supreme Court further observed:

" we had in no uncertain terms permitted them to do everything that is necessary to protect the place of worship. No order of any subordinate court can be construed to run counter to this Court''s order"

Another order was passed by the Supreme Court in W.P. (C) No. 611 of 1993 wherein a prayer for taking steps to safeguard religious places like Gyanvyapi masjid and Vishwanath temple at Varanasi and the Krishna temple and Idgah at Mathura were made. The Supreme Court directed the State and the Union of India Government to take all necessary steps for safeguarding the religious places as prayed for in the above prayer.

These orders were passed in respect of maintaining peace in the temples/mosques at Kashi and Mathura. The tenor of the order of the Supreme Court and the clear directions indicated that it was the job of the administration to protect the places of worship and they were free to take such steps as were necessary for that end. The order of the Supreme Court must be read to mean that only necessary legal steps were allowed to be taken and not beyond the legal provisions. Thus, the very existence of the Supreme Court''s order may not be read to forbid a challenge to the legality of the order u/s 144 of the Code.

On the question as to what is the true scope of an order u/s 144 of the Code, several case-laws were relied upon by the learned State counsel. In the case of Sayed Ashraf Hussain and Others Vs. State of U.P. and Others, , the Supreme Court observed that the High Court was right in observing that in sensitive issues covering communal tension, suitable orders were required to be passed by the Government so that harmony was maintained in the society. Confirming the view of the High Court, the Supreme Court directed that proper representation be made by the Appellants belonging to Shia Community to the State Government. It was argued by the State that the Court did not want to interfere with the power of the Government to keep peace.

Reference was also made to a decision of the Division Bench of this High Court in the case of Bal Bharti Nursery School and Another Vs. District Magistrate and Others, . It was held herein that an order u/s 144 of the Code was an executive order made for preserving peace and reasonable apprehensions on carrying on trade could also be imposed for preservation of peace.

In the case of Ishtiaq Hussain Farooqui Vs. State of U.P. and Others, , a question of right to profess a religion was involved as it was curtailed by an order u/s 144 of the Code. It was observed that the right to profess a religion was not an absolute one but was subject to maintenance of public order and it was for the District Magistrate to exercise his powers in consonance with the provisions of Section 144 of the Code.

In the case of Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, , the Supreme Court observed that an order u/s 144 of the Code'' was administrative in nature and was not judicial or quasi-judicial and it was amenable to writ jurisdiction if it violated any fundamental right. These words were spoken in a writ petition under Article 32 of the Constitution of India and in paragraph 23 the Court explained that after separation of judiciary and executive after the 1974 Code the function of the executive Magistrates were essentially of executive nature. In the same judgment however, in paragraph 26 the Court had observed that Section 144 of the Code does not confer any power on the executive Magistrate to adjudicate or decide upon a dispute of civil nature or question of title of properties or entitlement to the rights, and if civil court had already recorded a judicial pronouncement regarding such right the executive Court must have due regard to such established right subject of course to paramount consideration of the public peace and tranquility.

Reliance was also placed on Anr. Division Bench decision of the Allahabad High Court as in 1994 AWC 1752. In this case, the Division Bench of the Allahabad High Court ruled that when an order u/s 144, Code of Criminal procedure. is issued, a person aggrieved by such order might seek redressed from the State Government Under Sub-clauses (6) and (7) of this section and no writ could be issued.

In the oft-quoted decision of the Supreme Court in Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, , the Apex Court has explained as to what was public order and had ruled that Section 144, Code of Criminal Procedure when properly applied is not unconstitutional as offending Article 19 of the Constitution. It was observed, that the section was concerned with freeing the society from menace of serious disturbances of grave character. It is directed against those who attempt to prevent the exercise of legal rights of Ors. or imperil public safety and health. In paragraph 25 of this judgment it was further observed, "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 occurrence". In paragraph 29 again it was observed "All these matters were considered also by this Court in Babu Lai Parate''s, case. 1961 2 SCR 423 (parallel Babulal Parate Vs. State of Maharashtra and Others, . In that case, the Court emphasised that the restraint is temporary; the power is exercised by senior Magistrates who have to set down material facts, in Ors. words, to make an enquiry in the exercise of judicial powers with reasons for the order, with an opportunity to an aggrieved person to have to rescind either by the Magistrate or the superior courts."

Reference was also made to a decision of the Allahabad High Court as in 1988 AWC 616 , wherein it was observed that the power u/s 482, Code of Criminal Procedure was not to be exercised when express powers were there on the subject-matter. The same view was taken in the case of Kailash Chodhury by this High Court, as in Kailash Chaudhari and Ors. v. State of U. P. , observing, "Where there were express provisions barring a particular remedy, the High Court could not resort to exercise of its inherent powers and alternative remedy having been there, the powers u/s 482, Code of Criminal Procedure could not be invoked. In this very case the Court had ruled that the provisions of Section 151, CPC and 482, Code of Criminal Procedure were in pari materia with each Ors. and were identically worded.

The Supreme Court ruled in the case in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal, , that an order of injunction could have been passed if not under Order XXXIX, u/s 94, Code of Criminal Procedure as well and if the provisions of Section 94 were not there, still the Court could issue temporary injunctions in exercise of its powers u/s 151, CPC With all regards to the judgment in Kailash Chodhury''s case, it can only be observed that Section 482. Code of Criminal Procedure speaks of retention of inherent powers of the High Court while Section 151 Code of Criminal Procedure gives the inherent powers to every Court exercising civil jurisdiction. In that it is more wide than Section 482 of the Code.

The Supreme Court again ruled in the case in Amar Nath and Others Vs. State of Haryana and Another, , that when revision against an order is barred u/s 397(2), Code of Criminal Procedure the powers u/s 482 were not to be exercised to defeat that bar.

The main tenor of the argument of the State is that the Magistrate is to be subjectively satisfied for initiating a proceeding u/s 144, Code of Criminal Procedure and once that satisfaction is arrived at on the basis of reports, the same is not to be interfered with as it was an executive order and not a judicial or quasi- judicial order. It was further stated that when alternative remedies were available to challenge the order the extraordinary and inherent powers would not be exercised. In this context the case-laws have already been referred and although the Supreme Court had ruled that the order recorded u/s 144, Code of Criminal Procedure is,- neither judicial nor quasi- judicial, it had also observed that the power u/s 144, Code of Criminal Procedure was to be exercised by senior Magistrates who have to set down the material facts, in Ors. words to make an enquiry in exercise of judicial power with reason for the order. Section 482, Code of Criminal Procedure provides exercise of the inherent powers to make such orders as may be necessary:

(1) to give effect to any order under the Code.

(2) to prevent abuse of the process of any Court.

(3) otherwise to secure the ends of justice.

We may confine to the second aspect, i.e., to prevent abuse of the process of any Court. It is true that the new Code of Criminal Procedure. of 1973 separates the powers between the executive and the judiciary and in that sense, as observed by the Supreme Court, the functions of the Magistrates are police functions in recording an order u/s 144, Code of Criminal Procedure But under the frame of the Code of Criminal Procedure in Chapter II, the executive Magistrate also forms a class of criminal courts. Thus, when an action under the Code, to be precise u/s 144, Code of Criminal Procedure is taken by an executive Magistrate, it is an order by a Court and by norm and practice and by law as well, we have kept those orders open to revision before a competent Court. Thus, the order recorded by a Magistrate for action u/s 144, Code of Criminal Procedure is always open to judicial scrutiny by all higher Courts, and that was precisely stated by the Supreme Court in paragraph 29 of Madhu Limay''s case.

This Section 144, Code of Criminal Procedure appears in Chapter X covering maintenance of public order and tranquility and in Part C thereof, this section is the only provision under the heading of "urgent cases of nuisance or apprehended danger". The language also speaks that in cases where in the opinion of the executive Magistrate, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may by an urgent order stating the material facts of the case direct any person to abstain from 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 public tranquility, riot or affray.

The Magistrate is certainly to form his opinion before proceeding under this Section. The opinion or satisfaction may not be a subjective one as the section itself requires that there should be sufficient ground and the Magistrate is to state the material facts of the case. Together with these requirements, there is the scope of judicial review by higher Courts and that suggests that the opinion or satisfaction cannot but be objective. It is the urgency of a case of apprehended danger that gives a jurisdiction to a Magistrate to proceed u/s 144, Code of Criminal Procedure and not a remote probability of apprehension of breach of peace or a farfetched link between the action prohibited and a probable breach of peace.

If there be a lack of material to read this urgency from the face of the averments, certainly the Magistrate will be deemed not to have a jurisdiction under this section. Once the order suffers from initial lack of jurisdiction, it must be open to intervention u/s 482. Code of Criminal Procedure despite there being avenues for getting it rescinded. The powers u/s 144 (5) and (6) could be invoked when there is an order within the jurisdiction but when an order is without jurisdiction, the powers u/s 482, Code of Criminal Procedure cannot be barred simply for existence of an alternative remedy.

Back to the impugned order in question, we find that the Magistrate was informed by senior police officers about the alleged apprehension of breach of peace and in these reports, the police officers had described the dispute as "S*M f=T3TC" (dispute over shops). This was not just a stray or inadvertent heading as there had been earlier litigations between the Sansthan and these shopkeepers on the question of vacation of the shops and these litigations were decided against the Sansthan. Vacation was not sought in these actions on the ground of safety or security of the shrines. Security of the Krishna Janam Bhoomi and the Idgah were allegedly threatened, as per the order u/s 144, Code of Criminal Procedure as the authorities were apprehending that extremists might infiltrate into the premises. They might be the Hindu shopkeepers to follow their ideologies and thereupon agree to smuggle any arms and ammunitions and dangerous materials, which would at the end disturb the sensitive situation at the Krishna Janambhoomi-Shahi Idgah premises by damaging these shrines and that might ultimately result in country-wide communal disturbances.

It is true that the Supreme Court had given a clear direction that the State could take any steps towards securing the safety of these and Ors. religious sites, but this direction must be read as one to proceed according to law and, if necessary, to thereby curtail certain rights of the citizen. The order of the Supreme Court may not be read to mean that extra-legal powers would be exercised or even legal powers could be exercised in an extra-legal manner. The order in question does not say that a situation had arisen whereby the Krishna Janambhoomi or the Idgah were threatened. It simply states that, "Tint Tsffin dart ft 7 that" (a serious danger had arisen) and the reason for that conclusion was that due failure in the checking system at the entry gate, dangerous materials might be brought in through the closed receptacles, as the same could be indented in the name of bringing saleable wares in those shops. It appears that the authorities had already made arrangement for checking entry and exit and to check the materials brought in and taken out. That itself is sufficient to prevent smuggling into the premises any unwanted material. The checking could further strengthen entry of any unwanted person also, but to say that without closing the business of those shops, the end may not be achieved, simply suggests an acceptance on the part of the administration that their checking system is not fool-proof. It is true that reasonable restrictions may be put in on the fundamental right of a person to carry on a business but these reasonable restrictions may not be extended unreasonably so as to take away the right in to.

In the operative portion of the impugned order, as quoted earlier, actions under five heads were prohibited. While those in head Nos. 3, 4 and 5 were proper and justified, the same view may not be taken of the directions in head Nos. 1 and 2. These directions, it may be reiterated, are that (1) the shop Nos. 1 to 8B, 9, 10 and 21 to 30 and shop Nos. 11 to 20, total 31 shops, should stop all business transactions, and (2) the shopkeepers of these shops would not open these shops on and from 12.8.1998 and would not collect any material for sale in these shops nor bring in any material thereto for the purpose of business nor shall carry any material outside. When direction No. 3 had prohibited taking into the premises any fire-arm or Ors. dangerous material, these two directions, i.e., 1 and 2, were not at all necessary. More so, when no immediate connection between the running of business in those shops and the apprehended threat was established.

The problem may be seen from Anr. viewpoint. The Supreme Court had directed the State to take all necessary steps to secure the safety of the two religious sites. These necessary steps must be read as necessary legal steps, as observed earlier, and we should read Anr. word in these directions that the steps must be sufficient as well, i.e., ineffective and insufficient steps would lead to confusion and unnecessary exercise of administrative powers. An order u/s 144, Code of Criminal Procedure remains effective only for 60 days and the restraint on business may not stay beyond 60 days, i.e., 11.10.1998 and there may not be a repetitive order u/s 144. Code of Criminal Procedure The State must, therefore, evolve some effective solution for protection of the two religious sites as the shops may not be vacated by a mere order u/s 144, code of criminal Procedure At this juncture, the past litigations at the instance of the Sans than to evict the tenants become an important point for consideration as a male fide has been urged.

In view of the above discussion, it is felt that the impugned order is liable to be interfered with u/s 482, code of criminal Procedure only to that extent where it is an abuse of the process of the Court, and those are in relation to restrictive directions 1 and 2 in the impugned order.

The applications stand allowed in part. The Section 144, Code of Criminal Procedure order dated 12.8.1998 recorded by the City Magistrate, Mathura, shall remain operative for restrictive directions 3, 4 and 5 only and it is quashed so far restrictive directions 1 and 2 in the impugned order are concerned. However, it will be open for the State to take such effective measures as may achieve the end of protecting the two religious sites in question.