Repetitive use of Sec 144 abuse of power: SC

Can’t suppress legitimate opinion

Advertisement

• The power under Section 144, CrPC, is exercisable not only where there exists present danger, but also when there is an apprehension of danger

• But it cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights

Satya Prakash

Tribune News Service

New Delhi, January 10

Holding that repetitive orders under Section 144 of the Criminal Procedure Code (CrPC) would be an abuse of power, the Supreme Court today laid down guidelines for invoking the provision routinely used to issue prohibitory orders.

“The power under Section 144, CrPC, cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights,” said the Bench in its verdict on petitions challenging lockdown in Jammu and Kashmir in the aftermath of nullification of Article 370 of the Constitution.

The Bench directed the Jammu and Kashmir Administration to review forthwith the need for continuance of any existing orders passed under Section 144 in accordance with law laid down by it.

“The power under Section 144, CrPC, being remedial as well as preventive, is exercisable not only where there exists present danger, but also when there is an apprehension of danger,” it said.

“However, the danger contemplated should be in the nature of an ‘emergency’ and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed,” said the Bench led by Justice NV Ramana. The Bench also included Justice R Subhash Reddy and Justice BR Gavai.

“The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction. The triangulation of a restriction requires the consideration of appropriateness, necessity and the least restrictive measure before being imposed,” it said.

“Repetitive orders under Section 144, CrPC, would be an abuse of power,” the Bench said.

The top court said an order passed under Section 144 should state the material facts to enable judicial review of the same and the power should be exercised in bona fide and reasonable manner relying on the material facts indicative of application of mind.

“While exercising the power under Section 144, the Magistrate is duty-bound to balance the rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure,” the Bench said.