MD. GULAM ABBAS & Ors. v. MD. IBRAHIM & Ors.

4. Questions of title .cannot be decided for the first time either in a Writ Petition or in a proceeding u/s 144 Cr!. P.C. at all, as the remedy lies by way of a Civil Suit for an injunction. But, previous judgments on them may have a hearing on the question whether, and, if so, what order should be passed u/s. 144 Cr!. P.C. The magistrate is not concerned with individual performing his duty u/s 144 Cr!. P.C. but he has to determine what may rea- ·sonably necessary or expedient in a situation of which he is the best judge. rights [420DE, 421A] Clv!L APPLLATE JURISDICTION : Review Petition No. 36 of 1977. Application for review of this Court's Judgment dated 6th of De ·cember 76. IN Civil Appeal No. 941-A of 1976 A. K. Sen, M. C. Bhandare, (Mrs.) Urimi/a Kapoor, Kam/esh Bansal and (Mrs.) Shobha Dikshit for the Petitioners. (Miss) F G H , -I A B c D F G H 420 SUPREME COURT REPORTS [1978] 2 S.C.R. Bashir Ahmed, K. L. Hathi and P. C. Kapoor for the Respondent,. The Order of the Court was delivered by BEG, CJ.-This review application seems quite unnecessary. Since, however, learned Counsel for the petitioners have earnestly tried impress upon us that, unless we mentioned the correct principles on which jurisdiction is to be exercised under Section 144 of the Criminal Procedure Code by Magistrates, they may continue to exercise them on wrong principles, we may clear up these possibly imaginary difficulties. We find it hard to bi;)ieve that Magistrates will deliberately shut iheir eyes to the requirements of law as laid down clearly in Section 144, Cr. P.C., but, as what is not easily conceivable sometimes docs happen, we will explain the provisions of Section 144 Criminal Procedure Code a little. This provision confers a jurisdiction to "direct any person to abs tain from a certain act or to take certain order with certain property in his possession or under his management" with the object, inter alia, of preventing "a disturbance of the public tranquility, or a riot, or an Section 144(3) specifically lays down that the order under affray". this Section "may be directed to a particular public generally when frequenting or visiting a particular place". The kind of orders mentioned here are obviously intended only to prevent dangers to life, health, safety or peace and tranquility of members of the public. They are only temporary orders which cannot beyond two months from the making thereof as is clear from Section 144(6) of the Code. Questions of title cannot be decided here at all. But, previous judgments on them may have a bearing on the question whether, and, if so, what order should be passed under Section 144 Criminal Procedure Code. individual or to It may sometimes happen that a person may be prevented doing somethinng even upon his own property provided the doing ot a perfectly legal act constitutes a danger to human life, health, or safety of others or to public peace and tranquility. An example ,if this can be shouting of provocatlvr! siogans from one's own house top. Neverthe less, it is the duty of the authorities to aid and protect those who are performing completely legal acts in a reasonable and perfectly lefal manner or in accordance with what the law permits them to do. It is only where it is not practicable to allow them to do something which is quite lega.J, having regard to the state of excited feelings of p~rsons living in an area or frequenting a locality. that any action may taken under Section 144 Criminal Procedure Code which may inter fere with what are, otherwise, completely legal and permissible conduct and speech. It was asserted on behalf of the petitioners that in a representative wit between Shia and Sunni sects of Muslims question of title to pro perties or places to which Magistrate's orders under Section 144 Crimi If that be so nal Procedure Code related has already been decided. we have no doubt that the Magistrate will respect that decision in mak ing an order under Section 144 Cr. P.C. in the future. Then it would be easier for the Magistrate to see who should be allowed to exercise GULAM ABBAS V. IBRAHIM 421 the legitimate right of holding a meeting on or occupying a particular It may however be noted that propt,>rty or doing anything else there. the Magistrate is not concerned with individual rights in performing to determine what may he his duty under Sectior. 144 but he has reasonably necessary or expedient in a situation of which he is the best judge. It is impossible to decide If any community or sect is disposed to transgress the rights 'uiother in a particular property habitually, the remedy lies by way of a civil suit for an injunction. Both sides before us make conflict- iJ1g assertions on such questions. for the first time either in a writ petition or in a proceeding under If public peace and Section 144 of the Criminal Procedure Code. tranquility or other objects mentioned there are not in danger Vlagistrate concerned cannot act under Section 144. He could only direct parties to go to the proper forum. On the other hand, if the public safety. peace, or in danger, it is left to the Magistrate concerned to take proper action under Section 144 Criminal Procedure Code. No hard ·and fast rules can be laid down for guidance in exercising a power on which decisions must necessarily be governed It has to be judged on facts by the existing situation in each case. and circumstances existing at a particular place at a particular time. tranquility are A c We have no doubt that, particularly after this brief and obvious explanation of the provisions of Section I 44 Criminal Procedure Code, no orders will be passed contrary to what the section itself so clearly requires as conditions precedent to the passing of an order. We are not convinced at all that the applicants had any real ground for seeking a review of our order<. Consequently, we dismiss this application. We, however. make no orders as to costs. E S. R. Review Petition dismissed. •