BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:28.10.2014 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN AND THE HONOURABLE MS.JUSTICE V.M.VELUMANI WP(MD).No.16855 of 2014 and M.P(MD).Nos.1 and 2 of 2014 S.Rajamaravan@ Manickavasagam .... Petitioner Vs 1.The District Collector, Ramanathapuram District, Ramanathapuram. 2.The Superintendent of Police, Ramanathapuram District, Ramanathapuram. .... [ RESPONDENTS ] Writ Petition is filed under Article 226 of the Constitution of India for a Writ of Certiorarified Manamus (i) to call for the records pertaining to the proceedings in Roc.C2.43400/2014 dated 08.09.2014 on the file of the first respondent herein and quash the same (ii) and consequently directing the respondents to grant permission to the petitioner and his organisation people for celebrating Pasumpon Muthuramalinga Thevar Gurupoojai to be conducted on 30.10.2014 at Pasumpon Village, Ramanathapuram District particularly by using taxies and hires vehicles to travel to Pasumpon Village on the same day. !For Petitioner :: Mr.S.Durairaj For Respondents :: Mr.K.Chellapandian Addl.Advocate General Assisted by Mr.A.K.Baskarapandian ORDER
(Order of the Court was made by V.DHANAPALAN,J.) Heard Mr.S.Durairaj, learned counsel for the petitioner and Mr.K.Chellapandian, learned Additional Advocate General with Mr.A.K.Baskara Pandian, for the respondents.
2. What is challenged in this Writ Petition is to quash the proceedings in Roc.C2.43400/2014 dated 08.09.2014 on the file of the first respondent herein passed by the District Collector / District Magistrate and for a consequential direction to the respondents to grant permission to the petitioner and his organisation for celebrating Pasumpon Muthuramalinga Thevar Guru Poojai to be conducted on 30.10.2014 at Pasumpon Village, Ramanathapuram District, particularly, by using Taxies and hired vehicles to travel to Pasumpon Village on the said date.
3. The plea of the petitioner is that he is the Organiser of Thevar Ina Illampuligal belonging to Thevar Community and every year, their community people like him to conduct Thevar Guru Pooja at Pasumpon Village, Ramanathapuram District and worshipped at His Samathi peacefully. On the occasion of Guru Pooja, the Political Leaders, Ministers, Vetran Leaders used to participate and pay their homages. A large number of people used to hire vehicles for visiting Pasumpon Village to pay homages to the said leader. The first respondent has passed the prohibitory order, on 08.09.2014, in Roc.C2.43400/2014, wherein, in paragraph 8, it is stated as follows:-
"8) Now, therefore, with a view to maintain law and order, and to avoid disturbance to the public tranquility, I do hereby, promulgate orders under Section 144 Cr.P.C prohibiting any public meeting or assembly of five or more persons or procession except with the prior permission of the District Magistrate, for a period of two months from 9th September,2014, and also prohibiting from 9th September to 15th September and 25th October to 31st October the entry from other Districts of all types of hired vehicles ( Tourist Motor Cabs, Tourist Maxi Cabs, All India Tourist Motor Cabs, All India Tourist Maxi Cabs and Omni Buses and any other Tourist Vehicles, Stage Carriages with temporary or special permits or goods carriers and tractors as well as two wheelers and autorickshaws) carrying volunteers intending to participate in the birth/death anniversaries of various leaders including Immanuel Sekaran death anniversy and Thevar Gurupooja to be observed in Ramanathapuram District. Carrying jothi (torch) is also prohibited except from within one kilometre of the venue and with prior permission of the District Magistrate during these events."
4. It is further averred that as per the Hindu Customs and Rituals, Guru Pooja is being conducted in every year. The said religious activity is conferred by the Constitution of India. The worshippers and followers are mobilizing by various transport modes such as bus, train, car, two wheeleres, bicycle and padayathara. The grievance of the petitioner is that the respondents had imposed severe conditions for "Guru Poojai". Especially, the respondents are prohibiting his Community people coming by taxies or T Board vehicles. This is the indirect way of preventing his community from uniting them. It is not possible that every person to have own vehicles. Most of them are agriculturists and may not have own vehicle. Hence, it is the clear case of discrimination by way of caste and violation of Article 14 of the Constitution of India.
5. Further, it is contended that thousands of such community people had already booked hired taxi and other vehicles to proceed for Pasumpon Village on 30.10.2014. In all over the Tamil Nadu, there is only one statute for Pasumpon Muthuramaling Thevar at Pasumpon Village. Hence, there is no other choice for his community people except to visit pasumpon village on 30.10.2014. Therefore, it is the duty of the State and its Officials to protect the rights of every citizen to exercise their rights and liberty. It is their duty to ensure that the right to take a procession and its consequential arrangements are exercised peacefully and without any hindrance from any quarters. It is the further duty of the respondents to prevent and curtail any wrong doers and miscreants who are planning or committing disturbances and hindrances. In any case, the respondents cannot prevent the petitioner and his community people from exercising constitutional and fundamental rights. In such circumstances, the first respondent had instructed the second respondent to issue prohibitory orders under Section 144 of Criminal Procedure Code without any prior notice preventing their community people from attending the ceremony. The order of the first respondent is illegal, unlawful and unsustainable.
6. Further, the order of the first respondent is opposed to law, weight of evidence and probabilities of the case. Such Prohibitory Order is passed on the recommendation of the second respondent who is responsible to control and keep the public place and the first respondent without applying mind simply passed the order without any basis. The first respondent had passed the order dated 08.09.2014 without prior to the public even though he had more enough time and the function would schedule only on 30.10.2014. The impugned order passed by the first respondent prohibiting hired vehicles on scheduled time between 25.10.2014 to 31.10.2014 enshrined Constitution of India is violation of the principles of natural justice. Since the original order of the first respondent is not readily available, the same is fixed in the notice board of all the District Superintendent of Police. Hence, the petitioner is filing this Writ Petition with a xerox copy of the same.
7. On the above backgrounds, the petitioner sought to quash the order of the first respondent, dated 08.09.2014.
8. The learned Additional Advocate General would submit that in a similar circumstance, on a similar events, this Court has taken cognizance of various developments and decided the matter in accordance with law and therefore, he relied on that a comprehensive decision is arrived at and placed before this Court for consideration. He would further inform us that very recently this Court on the very same impugned proceedings has considered Roc.c2.43400/2014 dated 08.09.2014 and this Court had dismissed the said Writ Petition. Therefore, the law and order, in the case on hand is well settled. What are all conditions imposed in the order dated 08.09.2014 is only regulatory in nature and not prohibitory. He would further submit that in order to regulate the movement of the vehicles during these events, co-ordination meeting was conducted on 04.09.2014 and the leaders of the community were sensitised properly about the problems. The leaders also agreed to co-operate with the district administration and not to engage hired vehicle for their event.
9. Mr.S.Durairaj, the learned counsel for the petitioner highlighted the importance of the function and also about the participation of the people in such events during the Guru Pooja events. He also inform us that the Government Officials, Political Leaders, Veteran Leaders of the Community and other will come and assemble in that area. Most of the people are belonged to poor people. They do not have a private vehicle to travel and participate in the function. The prohibition of hired vehicle and T.Board Taxies is not as per law and the people will attend the function from in all walks of life.
10. We have considered the submissions of the learned counsel for the parties and perused the impugned order in question.
11. What are all the conditions imposed by the District Collector / District Magistrate are as follows:-
1. Whereas I have received a report dated 08.09.2014 of the Superintendent of Police, Ramanathapuram for prohibiting the entry of hired vehicles for the Birth / Death anniversaries of various leaders.
2.Whereas in his report, he has mentioned that, in the past during the Birth / Death Anniversaries of various leaders, large dumber of volunteers visited Ramanathapuram District in hundreds of hired vehicles and made lot of disturbances enroute. All the vehicles passed through the villages belonging to other communities, the volunteers raised several objectionable slogans which instigated persons belonging to other communities. This has resulted in tense atmosphere during Birth / Death Anniversaries of various leaders.
3.Whereas, in the year 2012 due to non compliance of the instructions issued by the district administration, the private. hired, vehicles travelled in the banned routes were brutally attacked by the people of other community and three youngsters were beaten to death. -In yet another incident near Madura!, petrol bomb was hurled at a vehicle hired by the volunteers visiting an event and killed 7 who travelled in the vehicle.
4.Whereas, to regulate the movement of the vehicles during these, events, co- ordination meeting was conducted on 04.09.2014 and the leaders of the community were sensitised properly about the problems. The leaders also agreed to co-operate with the district administration and not to engage hired vehicle for their event.
5.Whereas, the Superintendent of Police, Rarnanathapuram has now reported that some of the volunteers may use the hired vehicles for visiting the memorial places of their leaders during the forth coming Birth / Death Anniversaries.
6.Whereas, in order to maintain law and order, public peace and tranquility in Rarnanathapuram District, hired vehicles carrying volunteers from other Districts during the Birth / Death Anniversaries of various leaders to be stopped.
7. And whereas, the emergent circumstances do not admit the service of notice to the parties concerned, necessitating this order to be passed ex-parte as per proviso laid down under section 144(2) Cr. P.C.,
8. Now, therefore, with a view to maintain law and order, and to avoid disturbance to the public tranquility, I do hereby promulgate orders under section 144 Cr. P,C, prohibiting any public meeting or assembly of five or more persons of processions except with the prior permission of the District Magistrate, for a period of two months from 9m September 2014, and also prohibiting from 9;" September to 15th vSetember and 25th October to 31st October the entry from other Districts cf all types of hired vehicles (Tourist Motor, Cabs, Tourist Maxi Cabs. All India Tourist Motor Cabs, All India India Tourist Maxi Cabs and Omni Buses and any other Tourist vehicles, stage carriages with temporary or special permits or goods carriers and tractors as well as two wheelers and Autorlckshaws carrying volunteers intending to participate in the birth / death anniversaries of various leaders including ImnanueJ Sekaran death anniversary and Thevar Gurupooja to be observed in Rcimanathapuram District. Carrying Jyothi (Torch) is also prohibited except from within one Kilo metre of the venue and with the prior permission of the District Magistrate during these events."
12. From the reading of the above Clause 8 would make it clear that with a view to maintain law and order and to avoid disturbance to the public tranquility, the District Collector / District Magistrate has to pass prohibitory order under Section 144 Criminal Procedure Code prohibiting any public meeting or assemble five or more persons or procession except with a prior permission of the District Magistrate for a period of two months from 09th September 2014 and entry from the other district all types of hired vehicles like Tourist Motor Cabs, Tourist Maxi Cabs, All India Tourist Motor Cabs, All India Tourist Maxi Cabs and Omni Buses and any other Tourist Vehicles, Stage Carriages with temporary or special permits or goods carriers and tractors as well as two wheelers and autorickshaws carrying volunteers intending to participate in the birth/death anniversaries of various leaders including Immanuel Sekaran death anniversary and Thevar Gurupooja to be observed in Ramanathapuram District. Carrying jothi (torch) is also prohibited except from within one kilometre of the venue and with prior permission of the District Magistrate during these events. The order further makes it clear that if they want to have a procession, it is open to them to approach the District Collector / District Magistrate to have permission and participate in the function. Similarly, there is no prohibition as to the entry of the own vehicles having proper licence. Only the hired vehicles are prohibited with a view to maintain law and order problem during the time of guru pooja, as there will be a large gathering respecting the leader and come to the Pasumpon Village to pay respect to the freedom fighter to the said Leader. The object of Section 144 Criminal Procedure Code empowering the District Magistrate/District Collector to pass orders is a preventive measure to preserve public peace and tranquility, without lapse of time, acting emergently, if warranted. It is a paramount duty of the Law Enforcing agency to keep the societal needs by even overriding temporary private rights, keeping in view the public interest.
13. It is useful to refer Section 144 of the Criminal Procedure Code, which reads as follows:-
"144.Power to issue order in urgent cases of nuisance or apprehended danger:-
(1) In cases where, in the opinion of a District Magistrate, a Sub- Divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by Section 134, direct any person to abstain from a 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 the public tranquility, or a riot, or an affray.
(2) An order under this Section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequently or visiting a particular place or area. (4) No order under this Section shall remain in force for more than two months from the making thereof:-
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this Section, by himself or any Magistrate subordinate to him or by his predecessor-in- office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4) (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order, and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing."
14. The Supreme Court had an occasion to consider that under what circumstances Section 144 Cr.P.C., can be invoked and has to be invoked in a case like this. For better understanding, a few cases related to Section 144 Cr.P.C., discussed by the Supreme Court are taken into consideration for arriving at a right conclusion. The Supreme Court has laid down various decision on this aspects. As far as Section 144 Cr.P.C. is concerned, no doubt, Section 144 Cr.P.C., deals with immediate prevention and speedy remedy. Hence, it is for the statutory authority to satisfy the existence of the circumstances exhibiting the need for immediate action, before invoking such a provision. It is well settled that the sine quo non for an order under Section 144 Cr.P.C., is urgency requiring an immediate and speedy intervention by passing of an order, which must set out the material facts of the situation. The ultimate object of such a provision is to invoke only in grave circumstances for maintenance of public peace. Further, the efficacy of this provision is to prevent some harmful occurrence immediately and therefore, the emergency must be sudden and the consequences sufficiently grave.
15. In addition, the provisions of Section 144 Cr.P.C., cannot be resorted to merely on imaginary or likely possibility or likelihood or tendency of a threat, as the executive power, to cause a restriction on a constitutional right within the scope of Section 144 Cr.P.C., has to be used sparingly and very cautiously. It is also not in dispute that the provisions of Section 144 Cr.P.C., would be attracted only in emergent circumstances and the same could be exercised for the purposes of maintaining public order. Prima facie, the material facts should demonstrate that the action is being taken for maintenance of public order, public tranquility and harmony.
16. Here, it is relevant to place reliance on the decision in Re: Ramlila Maidan Incident v. Home Secretary, Union of India reported in 2012(2) SCALE 682, wherein the Honourable Apex Court has elaborately dealt with the scope of Section 144 Cr.P.C., and laid down the law thus: "79(40). Section 144 Cr.P.C. is intended to serve public purpose and protect public order. This power vested in the executive is to be invoked after the satisfaction of the authority that there is need for immediate prevention or that speedy remedy is desirable and directions as contemplated are necessary to protect the interest of others or to prevent danger to human life, health or safety or disturbance of public tranquility or a riot or an affray. These features must co-exist at a given point of time in order to enable the authority concerned to pass appropriate orders. The expression `law and order' is a comprehensive expression which may include not merely `public order' but also matters such as `public peace', `public tranquility' and `orderliness' in a locality or a local area and perhaps some other matters of public concern too. `Public order' is something distinct from order or orderliness in a local area. Public order, if disturbed, must lead to public disorder whereas every breach of peace may not always lead to public disorder. This concept came to be illustratively explained in the judgment of this Court in the case of Dr. Ram Manohar Lohia (AIR 1966 SC 740) wherein it was held that when two drunkards quarrel and fight, there is `disorder' but not `public disorder'. They can be dealt with under the powers to maintain `law and order' but cannot be detained on the ground that they were disturbing `public order'. However, where the two persons fighting were of rival communities and one of them tried to raise communal passions, the problem is still one of `law and order' but it raises the apprehension of public disorder. The main distinction is that where it affects the community or public at large, it will be an issue relatable to `public order'. Section 144 Cr.P.C. empowers passing of such order in the interest of public order equitable to public safety and tranquility. The provisions of Section 144 Cr.P.C. empowering the authorities to pass orders to tend to or to prevent the disturbances of public tranquility is not ultra vires the Constitution. ***** ***** ***** ***** 81(42). The scope of Section 144 Cr.P.C. enumerates the principles and declares the situations where exercise of rights recognized by law, by one or few, may conflict with other rights of the public or tend to endanger the public peace, tranquility and/or harmony. The orders passed under Section 144 Cr.P.C. are attempted to serve larger public interest and purpose. As already noticed, under the provisions of the Cr.P.C. complete procedural mechanism is provided for examining the need and merits of an order passed under Section 144 Cr.P.C. If one reads the provisions of Section 144 Cr.P.C. along with other constitutional provisions and the judicial pronouncements of this Court, it can undisputedly be stated that Section 144 Cr.P.C. is a power to be exercised by the specified authority to prevent disturbance of public order, tranquility and harmony by taking immediate steps and when desirable, to take such preventive measures. Further, when there exists freedom of rights which are subject to reasonable restrictions, there are contemporaneous duties cast upon the citizens too. The duty to maintain law and order lies on the concerned authority and, thus, there is nothing unreasonable in making it the initial judge of the emergency. All this is coupled with a fundamental duty upon the citizens to obey such lawful orders as well as to extend their full cooperation in maintaining public order and tranquility.
***** ***** ***** ***** 84(45). Moreover, an order under Section 144 Cr.P.C. being an order which has a direct consequence of placing a restriction on the right to freedom of speech and expression and right to assemble peaceably, should be an order in writing and based upon material facts of the case. This would be the requirement of law for more than one reason. Firstly, it is an order placing a restriction upon the fundamental rights of a citizen and, thus, may adversely affect the interests of the parties, and secondly, under the provisions of the Cr.P.C., such an order is revisable and is subject to judicial review. Therefore, it will be appropriate that it must be an order in writing, referring to the facts and stating the reasons for imposition of such restriction. In the case of Dr. Praveen Bhai Thogadia [(2004)4 SCC 684], this Court took the view that the Court, while dealing with such orders, does not act like an appellate authority over the decision of the official concerned. It would interfere only where the order is patently illegal and without jurisdiction or with ulterior motive and on extraneous consideration of political victimization by those in power. Normally, interference should be the exception and not the rule.
85(46). A bare reading of Section 144 Cr.P.C. shows that : (1) It is an executive power vested in the officer so empowered; (2) There must exist sufficient ground for proceeding; (3) Immediate prevention or speedy remedy is desirable; and (4) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.
86(47). These are the basic requirements for passing an order under Section 144 Cr.P.C. Such an order can be passed against an individual or persons residing in a particular place or area or even against the public in general. Such an order can remain in force, not in excess of two months. The Government has the power to revoke such an order and wherever any person moves the Government for revoking such an order, the State Government is empowered to pass an appropriate order, after hearing the person in accordance with Sub-section (3) of Section 144 Cr.P.C. Out of the aforestated requirements, the requirements of existence of sufficient ground and need for immediate prevention or speedy remedy is of prime significance. In this context, the perception of the officer recording the desired/contemplated satisfaction has to be reasonable, least invasive and bona fide. The restraint has to be reasonable and further must be minimal. Such restraint should not be allowed to exceed the constraints of the particular situation either in nature or in duration. The most onerous duty that is cast upon the empowered officer by the legislature is that the perception of threat to public peace and tranquility should be real and not quandary, imaginary or a mere likely possibility. This Court in the case of Babulal Parate [(1961) 3 SCR 423] had clearly stated the following view :
"the language of Section 144 is somewhat different. The test laid down in the Section is not merely 'likelihood' or 'tendency'. The section says that the magistrate must be satisfied that immediate prevention of particular acts is necessary to counteract danger to public safety etc. The power conferred by the section is exercisable not only where present danger exists but is exercisable also when there is an apprehension of danger." 87(48). The above-stated view of the Constitution Bench is the unaltered state of law in our country. However, it needs to be specifically mentioned that the 'apprehension of danger' is again what can inevitably be gathered only from the circumstances of a given case.? (emphasis added.)
17. On a careful scrutiny of the aforesaid dictum of the Honourable Apex Court, we are of the considered opinion that the provisions of Section 144 Cr.P.C., is invoked only in grave circumstances showing the necessity of an immediate action to be taken for maintenance of public peace and also, such provision could not be resorted to merely on imaginary or likely possibility or likelihood or tendency of a threat. However, it should not be a mere tentative perception of threat, but a definite and substantiated one, as it directly affects the right vested in a person under the Constitution of India.
18. Similarly, Articles 19(1)(a) and 19(1)(b) of the Constitution of India, are subject to reasonable restrictions that may be imposed on exercise of such right and that are in the interest of sovereignity and integrity of India. It is settled proposition of law that when some may be exercising their fundamental rights under Articles 19(1)(a) and 19(1)(b) of the Constitution, others may be entitled to the protection of social safety and security in terms of Article 21 of the Constitution and the State may be called upon to perform these functions in the discharge of its duties under the constitutional mandate and the requirements of Directive Principles of State Policy.
19. There can be no quarrel over the legal position that freedom of speech, right to assemble and demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic system, however, these rights are not free from any restrictions and are not absolute in their terms and application. While deciding the questions whether a restriction imposed was reasonable or not, the Honourable Apex Court in Ramlila Maidan Incident case (supra), observed as under:
"65(26). The questions before the Court, thus, are whether the restriction imposed was reasonable and whether the purported purpose of the same squarely fell within the relevant clauses discussed above. The legislative determination of what restriction to impose on a freedom is final and conclusive, as it is not open to judicial review. The judgments of this Court have been consistent in taking the view that it is difficult to define or explain the word "reasonable" with any precision. It will always be dependent on the facts of a given case with reference to the law which has been enacted to create a restriction on the right. It is neither possible nor advisable to state any abstract standard or general pattern of reasonableness as applicable uniformly to all cases. This Court in the case of State of Madras v. V.G. Row [AIR 1952 SC 196] held :
"It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard or general pattern of reasonableness, can be laid down as applicable to all cases."
66(27). For adjudging the reasonableness of a restriction, factors such as the duration and extent of the restrictions, the circumstances under which and the manner in which that imposition has been authorized, the nature of the right infringed, the underlining purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, amongst others, enter into the judicial verdict. [See: Chintamanrao & Anr. v. State of Madhya Pradesh (AIR 1951 SC 118)].
67(28). The courts must bear a clear distinction in mind with regard to 'restriction' and 'prohibition'. They are expressions which cannot be used inter-changeably as they have different connotations and consequences in law. Wherever a 'prohibition' is imposed, besides satisfying all the tests of a reasonable 'restriction', it must also satisfy the requirement that any lesser alternative would be inadequate. Furthermore, whether a restriction, in effect, amounts to a total prohibition or not, is a question of fact which has to be determined with regard to facts and circumstances of each case. This Court in the case of State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Others [(2005) 8 SCC 534] held as under:
"75. Three propositions are well settled: (i) 'restriction' includes cases of 'prohibition'; (ii) the standard for judging reasonability of restriction or restriction amounting to prohibition remains the same, excepting that a total prohibition must also satisfy the test that a lesser alternative would be inadequate; and (iii) whether a restriction in effect amounts to a total prohibition is a question of fact which shall have to be determined with regard to the facts and circumstances of each case, the ambit of the right and the effect of the restriction upon the exercise of that right....."
68(29). The obvious result of the above discussion is that a restriction imposed in any form has to be reasonable and to that extent, it must stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct and proximate nexus with the object sought to be achieved. Whenever and wherever any restriction is imposed upon the right to freedom of speech and expression, it must be within the framework of the prescribed law, as subscribed by Article 19(2) of the Constitution."
(emphasised by us.)
20. At this juncture, it is also useful to refer to the decision of the First Bench of this Court in P.Pugalenthi v. State of Tamil Nadu reported in 2012 (2) CTC 705, wherein the procedures to be adhered to invoke the power under Section 144 Cr.P.C. have been dealt in detail and the relevant paragraphs are reproduced hereunder for ready reference: "15. In the recent decision of the Supreme Court in the In Re-Ramlila Maidan Incident v. Home Secretary, Union of India and others, 2012 (2) Scale 628 referred supra, the scope of an order made under Section 144 Cr.P.C., has been stated. It has been held that an order passed in anticipation by the Magistrate empowered under Section 144, Cr.P.C., is not an encroachment of the freedom granted under Articles 19(1)(a) & 19(1)(b) of the Constitution and it is not regarded as an unreasonable restriction. It is an executive order, open to judicial review. It has been further held that the entire basis of an action under Section 144, is the urgency of the situation and the power therein is intended to be availed for preventing disorder, obstructions and annoyance with a view to secure the public weal by maintaining public peace and tranquillity. The decision of the Supreme Court in case of Gulam Abbas v. State of U.P., AIR 1981 SC 2198, referred supra, was referred to and stated that preservation of public peace and tranquillity is the primary function of the Government and the aforesaid power is conferred on the executive and in a given situation a private right must give in to public interest. That an order under Section 144, Cr.P.C., though primarily empowers the executive authorities to pass Prohibitory orders vis-a-vis a particular facet, but is intended to serve large public interest. Their Lordship's further held that the legislative intention to preserve public peace and tranquillity without lapse of time, acting urgently, if warranted, giving thereby paramount importance to the social needs by even overriding temporarily, private rights, keeping in view the public interest, a patently inbuilt in the provisions under Section 144 Cr.P.C. After referring to the decision in State of Karnataka v. Dr.Praveen Bhai Thogadia, 2004 (4) SCC 684 (supra), it was observed that Court should not normally interfere with matters relating to law and order which is primarily the domain of the concerned administrative authorities and they are by and large the best to assess and handle the situation depending upon the peculiar needs and necessities within their special knowledge. It has been further held that if the authority anticipates an eminent threat to public order or public tranquillity, it would be free to pass desirable directions within the parameters of reasonable restrictions on the freedom of individual and the provision is attracted only in emergent situation for the purpose of maintaining public order. The order should be in writing referring to the facts and stating the reasons for imposition of such restriction. The Supreme Court in State of Karnataka v. Dr.Praveen Bhai Thogadia, 2004 (4) SCC 684, held that the Court was not acting as an appellate authority over the decision of the official concerned and unless the order is patently illegal, without jurisdiction or with ulterior motives and on extraneous consideration of political victimization by those in power, normally interference should be the exception and not the Rule. The Court cannot in such matters substitute its view for that of the competent authority. The basic requirements for passing an order under Section 144 were held to be as follows:
(i) It is an executive power vested in the officer so empowered;
(ii) There must exist sufficient ground for proceeding;
(iii) Immediate prevention or speedy remedy is desirable;
(iv) An order, in writing, should be passed stating the material facts and be served the same upon the concerned person.
16. The Constitution Bench held that the gist of the action under Section 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences and it is possible to act absolutely and even ex parte, the emergency must be sudden and consequences sufficiently grave. It was further held that there is no general rule that an order under the Section cannot be passed without taking evidence. Further, it was held that the restraint imposed by the order is temporary and the aggrieved person has an opportunity to have the order rescinded and there are sufficient safeguard available to the person affected by the order and the restrictions are therefore reasonable and the mere fact that the power under the section may be abused is no ground to strike it down.
17.As noticed above, the power under Section 144, is an executive power and for exercise of such powers, there must be sufficient ground for proceeding and the next aspect would be immediate prevention or speedy remedy is desirable and the order is required to be in writing by directing any person to abstain from a certain Act or to take certain order with respect of certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent or tends to prevent obstructions, annoyance or injury to any person lawfully employed or danger to human life, health or safety or a disturbance of the public tranquillity or a riot or an affray."
21. Further, the Supreme Court in a decision reported in a question as to the exercise of power conferred under Section 144 Criminal Procedure Code and a case in the circumstances decided thereon laid down a ruling in the decision reported in the State of Karnataka Vs. Dr.Praveen Bhai Thogadia, AIR 2004 SC 2081 : (2004) 4 SC 684 : LNIND 2004 SC 416. In the said ratio laid down by the Supreme Court , in paragraph 6 it is held that Court should not interfere in matters relating to law and order which is primarily the domain of the authorities concerned. Paragraph 6 of the reads as thus:-
"6. Courts should not normally interfere with matters relating to law and order which is primarily the domain of the administrative authorities concerned. They are by and large the best to assess and to handle the situation depending upon the peculiar needs and necessities within their special knowledge. Their decision may involve to some extent an element of subjectivity on the basis of materials before them. Past conduct and antecedents of a person or group or an organisation may certainly provide sufficient material or basis for the action contemplated on a reasonable expectation of possible turn of events, which may need to be avoided in public interest and maintenance of law and order. No person, however big he may assume or claim to be, should be allowed, irrespective of the position he may assume or claim to hold in public life, to either act in a manner or make speeches which would destroy secularism recognised by the Constitution of India. Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that the State should have no religion of its own and no one could proclaim to make the State have one such or endeavour to create a theocratic State. Persons belonging to different religions live throughout the length and breadth of the country. Each person, whatever be his religion, must get an assurance from the State that he has the protection of law freely to profess, practise and propagate his religion and freedom of conscience. Otherwise, the rule of law will become replaced by individual perceptions of one?s own presumptions of good social order. Therefore, whenever the authorities concerned in charge of law and order find that a person?s speeches or actions are likely to trigger communal antagonism and hatred resulting in fissiparous tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happenings."
22. It is seen that the impugned order is based upon a report of the Superintendent of Police, Ramanathapuram District, sent to the District Magistrate concerned and on the basis of the said report, the District Magistrate who is the competent authority in this regard passed an order under Section 144(1) of the Criminal Procedure Code. Such an order came to be passed in view of material facts available before them. In order to pass such order, entire materials have been taken into consideration by the District Collector in order to regulate the traffic movements. What is culminated in the Article 19(1)(b) of the Constitution is freedom for movement and the same is having a reasonable restriction, as discussed above, which has been imposed by the District Magistrate, which is well within the ambit of the constitutional mandate. Needless to state that what is the freedom available to the petitioner equally the restriction is also reasonably imposed under the authority of law. A perusal of the impugned order would show that the impugned order is not prohibitory in nature but it is only regulatory in nature in order to have a peaceful conduct of Guru Pooja and maintain the law and order. In order to achieve the peaceful celebrations who are intended to assemble and pay homage to Pasumpon Muthuramalinga Thevar, such an order is passed. Time and again, the issue in question were discussed in detail by this Court and uphold the impugned order therein in order to maintain peace and tranquility amongst the public at large. Therefore, it can never be found fault with by the petitioner, as the law and order is purely within the domain of the District Collector concerned.
23. In view of the foregoing discussions and observations, we feel that the action initiated and the conditions imposed by the District Collector, Ramanathapuram District is not contrary to the constitutional principles framed thereunder nor against any authority of law. We are in quite agreement with the order passed by the District Collector, Ramanathapuram District and it need not be interfered by this Court in any quarters. Therefore, there is no merit in consideration in this case and impugned order passed by the District Collector, Ramanathapuram District is sustainable in law. Hence, we have no hesitation to dismiss this Writ Petition. Accordingly, this Writ Petition is dismissed. Consequently, the connected Writ Petitions are closed. No costs.
1.The District Collector, Ramanathapuram District, Ramanathapuram.
2.The Superintendent of Police, Ramanathapuram District, Ramanathapuram.