In India we often hear in news about the applicability of Section 144 at different parts of the country in case of riots or strikes or vase public processions. When and why the government tends to invoke this section? Does it infringe any fundamental rights? Who has the power to apply section 144? And who all are liable to be punished as an unlawful assembly? All these questions will be answered in this article.
Article 19 (1)(B) of the Constitution of India 1949, lay down that ‘All citizens shall have right to assemble peaceably and without arms. That means citizens of India has been given freedom to assemble and organize a public gathering or even processions on their own will. But this right to assemble is subject to reasonable restriction by the state in the interest of sovereignty and integrity of India or public order under clause 3 of Article 19 of the Constitution of India 1949. Thus, an appropriate authority can prohibit holding up of a public meeting, in a case where they are of the opinion that doing so is necessary for maintaining public peace and tranquillity.
What is an Unlawful Assembly?
An assembly may turn unruly and which may cause injury to person, property or public order. Such an unruly assembly is termed as ‘Unlawful Assembly.’
The term ‘Unlawful Assembly’ has been defined under section 141 of the Indian Penal Code, 1860 as an assembly of five or more persons having a common object to perform an omission or offence.
Requisite to constitute an Unlawful Assembly:
To constitute an unlawful assembly the following 3 conditions must co-exist: –
Power to issue order in urgent cases of nuisance of 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 tranquillity, or a riot, of 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 frequenting 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. D.- Disputes as to immovable property
Duration of applicability of section 144
According to clause 4 of section 144 of the Cr.P.C. ‘No order under this section shall remain in force for more than two months from the date of issuance, provided the state government, if of the opinion that it is necessary to do in case of emergency to prevent danger to human life, health or safety or to prevent a riot, than the state government may order the magistrate to make order to extend the period of applicability of section 144, not more than the period of six months.
As this section confers full power to magistrate to take certain action to apprehend danger in case of emergency, the Magistrate should apply his mind to see whether the matter is of such nature which requires an order under this section, as otherwise a matter to disperse unlawful assembly creating public nuisance can be dealt with under section 133 of Cr.P.C
Difference between section 144 and section 133 of the Cr.P.C
Cases of ordinary public nuisance are covered under section 133; while, cases of urgency are covered by section 144. Further, under the latter, the very urgency of the case demands the laying aside of the usual formalities and preliminaries to the making of an order. While, under section 133, the Magistrate acts on the report of a police officer or other information; there is no such requirement under section 144.
What is the punishment if someone violates Section 144 CrPC?
Any person involved in such unlawful assembly can be booked for “engaging in rioting”. The maximum punishment for such act is three years. Anyone who obstructs the police from breaking the assembly or abets the assembly is also punishable under law.
What is the difference between prohibitory orders under Section 144 and curfew?
It must be noted that Section 144 CrPC is not equivalent to a curfew. Curfew orders are issued in more severe situations where people are instructed to stay indoors for a specific time or period. Establishments such as markets, schools, colleges, etc. are ordered to remain shut, and only essential services are allowed to run on prior notice. There is a complete restriction on traffic as well.