Section 144 of the Criminal Procedure Code (CrPC) of 1973

Section 144 of the Criminal Procedure Code (CrPC) of 1973 authorises the Executive Magistrate of any state or territory to issue an order to prohibit the assembly of four or more people in an area. According to the law, every member of such 'unlawful assembly' can be booked for engaging in rioting.

Section 144 is imposed in urgent cases of nuisance or apprehended danger of some event that has the potential to cause trouble or damage to human life or property. Section 144 of CrPC generally prohibits public gathering.

Section 144 has been used in the past to impose restrictions as a means to prevent protests that can lead to unrest or riots. The orders to impose Section 144 have been conferred to Executive Magistrate when there is an emergency situation.

The definition of 'unlawful assembly', according to Indian law, is laid down in Section 141 of the Indian Penal Code. According to this section, an assembly of five or more persons becomes unlawful when its purpose is or becomes: 

• To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant;
• To resist the execution of any law, or of any legal process;
• To commit any mischief or criminal trespass, or other offence;
• By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right;
• By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Scope of Section 144 of the Criminal Procedure Code

Action under this section is anticipatory, that is, it is utilized to restrict certain actions even before they actually occur. Anticipatory restrictions are imposed generally in cases of emergency, where there is an apprehended danger of some event that has the potential to cause major public nuisance or damage to public tranquility. The gist of action under S.144 is the urgency of the situation; its efficacy is the likelihood of being able to prevent some harmful occurrences. Preservation of the public peace and tranquility is the primary function of the Government and the aforesaid power is conferred on the Executive Magistracy enabling it to perform that function effectively during the emergent situations.

In the case of Radhe Das v Jairam Mahtothe dispute was over a piece of property. The petitioners applied for restriction on the respondent from entering the property, which was ordered by the Magistrate under Section 144. However, while the judicial proceedings were in way the respondents too claimed for the same prohibition on the petitioners, which was subsequently granted by the Magistrate under the same section. The respondents in response to this order brought the present action on the ground that their right over the property was being violated by the order. The court held that if the situation demands any action, then for prevention of public peace and tranquility, the individual rights of a person can be renounced for the greater benefit of the society at large. In the words of:

"To give jurisdiction under this section, the Magistrate shall be of opinion that immediate prevention or speedy remedy is desirable and that the direction he proposes to make is likely to prevent a disturbance of the public tranquility or a riot or an affray. In such circumstances private rights must give way."

The principles that must be borne in mind before the application of this section has also been elaborated upon in the case of Manzur Hasan v Muhammad Zaman and approved in the case of Shaik Piru Bux v Kalandi Pati. They are:

1. Urgency of the situation and the power is to be used for maintaining public peace and tranquility

2. Private rights may be temporarily overridden when there is a conflict between public interest and private rights

3. Questions of title to properties or entitlements to rights or disputes of civil nature are not open for adjudication in a proceeding under section 144.

4. Where those questions have already been decided by the civil courts or by judicial pronouncements, the Magistrate should exercise their power under section 144 in aid of those rights and against those who interfere with the lawful exercise thereof.

5. The consideration should not be that restriction would affect only a minor section of the community rather that a large section more vociferous and militant.