The Role of Provisions in Ensuring the Maintenance of Public Order and Tranquility: A LEGAL ANALYSIS
BY: KANIKA SHARMA, 50093096, BCOM LLB, 2nd year
“Peace is not the absence of conflict, but the ability to manage conflict by peaceful means.” – Ronald Reagan
The requirement for the proper working of a society is the maintenance of public order and tranquillity. It is a kind of safety, security and peace which a citizen must feel in daily life so to maintain the following essential element the provisions related to the maintenance of public order and tranquillity are mentioned under the Code of Criminal Procedure deals with the prevention of chaos, riots and any other harm to the public. And have assigned duties, functions and powers of the executive magistrate, district magistrate and police officers related to the same matter. This article further would discuss the provisions of CRPC, the leading case laws, current situations, its implementation and many more things.
Let’s first of all understand the meaning of public order and tranquillity for a better understanding of the concept.
So the word “public order” means the maintenance of peace and order in society .it includes the prevention of disorder, disturbance and violence and the protection of public safety, health and morals.
The term “Tranquility” means the absence of any disturbance .it implies a state of calmness and peacefulness hence maintenance of public order and tranquillity is essential to ensure the smooth functioning of society and the protection of citizens’ rights and freedom.
Chapter X of The Code of Criminal Procedure,1971 states the provision of maintenance of public order and tranquillity from sections 129-148 it is further divided into 4 parts: A.Unlawful Assemblies. B. Public Nuisance ,C.Urgent cases of nuisance or apprehended danger D. Disputes as to immovable property. And also in Chapter VIII sections 141 to 160 under the Indian Penal Code have provisions related to offences against public tranquillity.
Lets us further understand the provisions of CRPC related to the Maintenance of Public Order and Tranquility.
PART A: UNLAWFUL ASSEMBLY (sections 129-132)
Unlawful assembly is defined under section 141 of the Indian penal code which states that an unlawful assembly is a group of five or more that, have a common object and engage in illegal acts.
Section 129: states the power of any executive magistrate or police officer to disperse an unlawful assembly. This section gives power to a police officer and any executive magistrate, who is present at the spot where the unlawful assembly is causing a disturbance to public peace and can order the assembly to disperse.
If the assembly refuses to disperse after being ordered. the authorised person can use force, if necessary to disperse the assembly
If any person from the assembly causes some disturbances to any public servant in charge of their duty then they can be punished under the law.
It also protects the police officer or any executive magistrate acting under the direction of section form legal proceedings for any action taken in good faith.
Section 130:it states the use of armed forces to dipper unlawful assemblies .it gives powers to the state government to request the central government to deploy some armed forces for dispersing the unlawful assemblies.
This section comes into the picture only when the state government believes that the control of unlawful assembly is going out of control from the hands of the local police then a request is sent to the central government to deploy the armed forces to disperse the assembly.
The armed forces have the leverage to use the force necessary to disperse the assembly including firearms but only after giving due warning.
And protection is given to armed forces from legal proceedings for any action taken in good faith and by the provisions of this section.
Section 131: this section gives power to any commissioned or gazette officer of the armed forces to disperse such unlawful assembly with the help of the armed forces under his command .this empowers them to arrest and confine any person liable for the same.
This section can only apply when no executive magistrate is approachable and quick actions are required as public security is in danger.
Section 132: it is protecting provisions which give a safeguard for any action under sections 129 to 131 of CRPC done in good faith and by provisions but except in the cases where central or state government sanctions the same. But if any officer does not follow the provisions and uses extra force required to control the assembly then won’t be protected under this provision.
PART B : PUBLIC NUISANCES (Section 133-143)
Public nuisance refers to an act or condition that interferes with the use of a public right or property or causes damage to the general public
Section 133: it empowers the district magistrate or sub-divisional magistrate or any other executive magistrate specially empowered on behalf of the state government to pass conditional order to stop the person from causing a nuisance in the public.
A conditional order requires the person responsible for doing the nuisance to remove it within a specified period if failed the magistrate may issue further order directing the authorities to remove the nuisance.
It also mentions 6 circumstances which will be considered a public nuisance those are:-
- If it causes injury, danger or nuisance to the public: The public nuisance must cause injury, danger or nuisance to the public and not just to a specific person.
- If it interferes with a public right: A public nuisance must interfere with a public right, such as the right to use a public road or waterway.
- If it obstructs a public way or waterway: A public nuisance must obstruct a public way or waterway, such as a road or waterway.
- If it causes serious harm to public health: The public nuisance must cause serious harm to public health, such as the spread of a contagious disease.
- If it interferes with a public trade or business: A public nuisance must interfere with a public trade or business, such as a factory that produces noxious fumes.
- If it is an unlawful obstruction or nuisance to the public in the use of a public space: A public nuisance must be an unlawful obstruction or nuisance to the public in the use of a public space, such as a park
The magistrate under these provisions can pass an order in 6 ways:-
- Order to remove nuisance
- Order to refrain from harassment
- Order to take steps to prevent harassment
- An order to dispose of nuisance items
- Order to attach property causing a nuisance
- An order for the arrest of a person who harassed
And also protect 133(2) to the magistrate under this section from legal proceedings.
Section 134: it states the procedure for the notification of the order to the person doing the nuisance it shall reserve in the same way as summons are served .and if still the order didn’t get served then notification shall be sent by proclamation or copy may be stuck up at such place as may be fittest for conveying the information to such person.
Section 135: states the duty of the accused to follow the order or show cause which means either he follows the order given or appears according to the order and showcases for the order.
Show cause means when the court issue a summons again an accused for a criminal offence requiring that person to appear before the court to face the charges .when the accused appears so, he/she may be allowed to explain his /her side of the story and have to provide reasons for upholding the charges
Section 136: if the person against whom such order is made fails to follow that then there would be consequences for the same that is he shall be liable for the penalty prescribed in section 188 of the Indian penal code and the order shall be made absolute.
Here absolute means that the conditions of the order are met so now the order is binding and it’s an obligation to the person for complying with the terms.
Section 137: is applicable in cases where the party denies the existence of any public right to cause a nuisance. It shall be incumbent upon the party to claim and substantiate the same with evidence. It lays down the procedure where public rights are denied and it is mandatory to follow them before commencing procedure under section 138 CrPC.
The requirements of this section are as follows.
- First, the party against whom a provisional order is made shall appear before the magistrate, and deny the existence of the public right in question.
- Secondly, the party shall produce some reliable evidence that is legal, admissible in the court, and supporting his denial of the public right in question.
If all these above-said conditions are satisfied, the magistrate’s Jurisdiction to continue the proceeding is ceased.
Section 138: procedure to be followed when the person has appeared for the show cause there can be two circumstances:-
- If the magistrate is satisfied, the order shall be made absolute with or without modification if the order either is reasonable and proper
- If the magistrate is not satisfied, further proceedings shall not be taken in the case.
Section 139: if the magistrate feels so required for the investigation purpose under section 137 or 138 .he can either by summoning examine the expert or can direct a local investigation.
Section 141: lays down the procedure to issue an absolute order directing him to perform the order within the time fixed in the notice. In case the act is not performed, the magistrate can recover the cost of performing by the sale of immovable or movable property.
section 142: an injunction can be issued against whom the order is made by a magistrate under section 133 where immediate measure is required to prevent any imminent danger or serious injury.
Section 143: a magistrate can order any person not to repeat or continue a public nuisance.
PART C- URGENT CASES OF NUISANCE OR APPREHENDED DANGER(Section 144-144(a))
Section 144: empowers an executive magistrate, District Magistrate or Sub-divisional Magistrate to issue an order in urgent cases of nuisance or apprehended danger.
The objective of this section is to maintain public order, and tranquillity and prevent any danger to human life, health or safety. If the Magistrate is satisfied that there is an imminent danger to human life or property or a likelihood of public disturbance or serious breach of peace, the Magistrate can pass an order directing any person to abstain from doing a particular act, or directing the removal of a public nuisance, or placing any restriction upon the assembly of people or movement of vehicles in a particular area.
The order under Section 144 can be passed for a specified period not exceeding two months, and it can be extended for a further period not exceeding six months. The order passed under Section 144 is urgent, and it is expected to be obeyed immediately.
If any person contravenes the order passed under Section 144, he or she can be punished under Section 188 of the Indian Penal Code, which deals with disobedience to an order lawfully promulgated by a public servant. The punishment under Section 188 can range from simple imprisonment for a term of one month or a fine of up to 200 rupees, or both.
PART D- DISPUTES RELATED TO IMMOVABLE PROPERTY (section 145-148)
SECTION 145:deals with disputes regarding possession. The section prevents any breach of public peace by maintaining possession of one or the other party unless the actual rights are decided by the civil court. The Executive Magistrate shall make an order summoning the parties to attend the court where a report or information of dispute is brought before him concerning a breach of peace concerning land, water, or boundaries.
There must be an apprehension of a breach of peace and public order for the magistrate to pass preliminary orders The right under the section is not merely procedural rights but certain substantive rights having an integral connection with the enjoyment of the immovable property
SECTION 146:Attachment and appointment of a receiver
After making an order under section 145, the magistrate can order under section 146 for attachment of the subject in dispute and appointment of a receiver if:
- The Magistrate considers the case to be an emergency
- he decides that none of the parties was in the possession as referred to under section 145
When there is no longer felt that there isa chance of a breach of peace, the order of attachment can be withdrawn at any time by the magistrate. When a receiver is subsequently appointed by the civil court for the subject in dispute the Magistrate shall issue an order against the receiver appointed by him to hand over the possession to the receiver appointed by the civil court.
SECTION 147: it acts as an amplification of section 145. This section empowers the executive magistrate to issue a written order against the parties to appear before the court either in person or by pleader if he is satisfied upon the report submitted by the police or information of dispute which likely causes a breach of peace due to a dispute regarding land or water within the local jurisdiction. The right claimed against the matter in dispute can be an easement or otherwise.
SECTION 148:Provisions for local inquiry according to section 148, when under sections 145, 146 or 147, the necessity to conduct an inquiry is felt; a District Magistrate or Sub-divisional Magistrate may depute any subordinate magistrate to conduct an inquiry by issuing a written instruction which may be necessary for his guidance.
LEADING CASE LAWS
State of Karnataka v. B. Padmanabha Behya it was held that the Supreme Court held that if the police opened fire without legal permission, the families of the deceased were entitled to compensation from the state.
Municipal Corporation of Delhi v. Gurnam Kaur(1989) 1 SCC 101. case. In this case, the respondent had constructed a building without obtaining the necessary approvals from the municipality The building was found to be unstable and posed a threat to public safety.The court held that under Section 133 of the CrPC, a magistrate has the power to take action against public nuisances, including buildings that are dangerous or injurious to public health or safety. The court also held that the municipal authorities had the power to issue a notice under Section 133, as the building in question was a public nuisance.
The court further held that the magistrate had the power to order the demolition of the building, as it posed a threat to public safety. The court rejected the respondent’s argument that the notice was illegal and upheld the magistrate’s order for the demolition of the building.
In the case of Ravi S/o Anant Malgi v. State of Karnataka(2014) 8 SCC 786., the accused had failed to comply with an order issued under Section 133 of the CrPC directing him to remove a dangerous structure. The magistrate issued a warrant for the accused’s arrest under Section 136 of the CrPC.The court held that under Section 136 of the CrPC, a magistrate has the power to issue a warrant of arrest against a person who has failed to comply with an order issued under Section 133 or Section 134 of the CrPC. The court further held that the magistrate had acted within his jurisdiction in issuing the warrant, as the accused had failed to comply with the order.
As decided in the case of M.L. Gopalaswamy v. State of Mysore AIR 1960 SC 1340.Proceedings cannot be stopped without taking evidence. It is the magistrate’s duty to take the evidence as a reason for the order he must make., it would be illegal to issue an absolute conditional order without recording evidence and this requirement is mandatory.
1. The case of State of Bihar v. K. K. Misra (1969) 2 SCC 760. In this case, the Bihar government issued an order under Section 144 that prohibits the assembly of more than four people in certain areas of the state due to fears of communal violence.
The order was challenged in court by KK Misra, who argued that it violated the fundamental right to freedom of assembly guaranteed by the Constitution of India. The court ruled that while the right to freedom of assembly is an important fundamental right, it is not an absolute right and must be balanced against the need to maintain public order and prevent potential danger.
The court further stated that the order issued under Section 144 was a reasonable restriction of the right to freedom of assembly, as it was necessary to prevent possible violence and maintain public order. The court also ruled that the order does not violate the fundamental right to freedom of speech and expression because it does not prohibit peaceful demonstrations or protests.
2. Manzoor Hasan and Ors. vs. Muhammad Zaman and Ors (1996) 7 SCC 606.. The case is an important precedent related to section 144 CrPC. In this case, the court elaborated on the principles that must be kept in mind before applying Section 144. There are four main principles:
- The power under Section 144 is preventive and not punitive: The power to issue an order under Section 144 is preventive in nature and aims to prevent a possible threat to human life, health or safety, not to subsequently punish the offender.
- The warrant must be necessary to prevent a disturbance of the public peace: The warrant must be necessary to prevent a disturbance of the public peace and must be issued only when there is a fear of danger to human life, health or safety.
- The warrant must be based on material facts: The warrant must be based on material facts that indicate a real and present danger to human life, health, or safety. It cannot be based on vague or speculative information.
- Order must be appropriate to the situation: Order must be appropriate to the situation and not excessive or arbitrary. It must be limited to what is necessary to prevent a potential threat to human life, health or safety and must not interfere with fundamental rights more than is necessary.
In Ram Pal Singh v. Bagel case, The Court held that before proceeding under Section 145 it is necessary to ascertain whether there is a dispute between the parties and whether a breach of the peace is likely to occur. The court further decided that the magistrate should base his decision on objective facts and not only on the subjective claims of the parties to the proceedings.
The Magistrate must also conduct a preliminary inquiry and hear both parties before passing an order under Section 145.
In the case of Ranjit Singh v. Moti Lal Katiyar, it was held that the power should be exercised by a Magistrate with due care and diligence and should be exercised in limited cases where immediate action is required to maintain the peace and prevent any breach of public order.
Maintenance of public order and tranquillity situation in other countries
Like in Syria, where the protracted civil war has led to significant unrest and instability, impacting the safety and security of both Syrian citizens and foreign nationals. The international community has joined efforts to help resolve the conflict and restore public order in the country.
Ongoing conflicts or political instability, such as in Afghanistan, Yemen and Somalia, where maintaining public order and peace has been a significant challenge. In addition, countries with high levels of crime and violence, such as Brazil and Mexico, have also faced challenges in maintaining public order and ensuring the safety and security of their citizens.
Are the provisions for the maintenance of public order and tranquillity being followed?
The implementation and enforcement of the provisions of maintenance of public order and tranquillity in India are from circumstances like it was successfully implemented during the covid time section 144 of Crpc was widely used by Indian authorities to control the spread of the virus .this provision was used to prohibit public gatherings and rallies to enforce social distancing norms in public places. Lockdown during this time was also under the provisions of section 144 of crpc it was implemented to prevent the spread of the virus. included the closure of shops, malls and other public places and restrictions on travel and movement.
But there are certain circumstances where these provisions are challenged and criticised as allegations are put reading the excessive use of force by both police.
All in all, the implementation of provisions for the maintenance of law and order in India is a complex issue that requires a balance between ensuring public safety and protecting individual rights and freedoms. The authorities must act under the law and respect the human rights of all individuals while taking the necessary measures to maintain public order and peace.
Maintaining public order and peace is not only a legal obligation but also a moral imperative everyone should consider as their duty rather than criticizing it. It requires a delicate balance between ensuring public safety and protecting individual rights and freedoms. We must work to uphold these values to ensure a peaceful and harmonious society for all. as we are only living in the society and it’s for our safety. So our safety is in our hands if not done properly then provisos of Crpc applies. There must be a check on the authorities to prevent its misuse as it might hamper the fundamental right of a citizen.
- The Code of Criminal Procedure,1973
4.Ram Pal Singh v. Bhagelu [(1977) CrLJ 210]
5. State of Karnataka v. B. Padmanabha Behya is (1985) 1 SCC 355.
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