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2019 DIGILAW 15 (MAN)

Solemwon v. State of Manipur

2019-03-28

LANUSUNGKUM JAMIR, RAMALINGAM SUDHAKAR

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JUDGMENT : Ramalingam Sudhakar, J. Heard Mr. M.Ibohal, learned counsel for the petitioners as well as Mr.N.Kumarjit, learned Advocate General, Manipur for the State respondents. 2. This Public Interest Litigation has been filed by the petitioners Counsel represented by its duly authorised person stating that the petitioners are representing the residents of Ukhrul district. The grievance of the petitioners is that by the impugned proceeding of the District Magistrate, Ukhrul District dated 14.3.2019 and rights of the citizens, more particularly, the residents of Ukhrul District is being curtailed. There is a clear breach of Article 19 of the Constitution of India. The impugned proceeding, Annexure-A/3 dated 14.3.2019 is as follows: "GOVERNMENT OF MANIPUR OFFICE OF THE DISTRICT MAGISTRATE, UKHRUL UNDER SECTION 144 OF THE CODE OF CRIMINAL PROCEDURE Ukhrul, the 14th March, 2019 No. 12/11/Elec/L.S-2019/DC/UKL: Whereas the Election Commission of India has announced the schedule for Conduct of 17th Lok Sabha Election, 2019 and report has been received that certain anti-social elements are likely to indulge in unlawful activities. Whereas, such activities may cause serious breach of peace & disturbance of the public tranquility and thereby, endanger human lives and properties in the areas described by the scheduled below and Whereas, such disturbance of the public tranquility, breach of peace and endangerment of human life and property are sought to be prevent and Whereas, it is considered that restriction on (i) assembly of 5 or more persons which is likely to turn unlawful and (ii) prohibition on carrying of firearms, sticks, stones, weapon or object is (iii) the carrying of licensed arms and ammunitions of any description which can be used as offensive weapons would be effective in preventing such disturbance as described above and Whereas, I consider this as a fit case for issuing prohibitory orders under Section 144 of Cr.P.C. 1973 in keeping with the above objectives. Now, therefore, I, Dr. Harmit Singh Pahuja, District Magistrate, Ukhrul District, Manipur, in exercise of the powers conferred under sub-section 2 of Section 144 of Cr. P. C. 1973, do hereby prohibit, with immediate effect from 1700 hours on 14.03.2019, till the completion of Lok Sabha Election, 2019, the following activities in the area described by the schedule below. (i) The assembly of 5 or more persons which is likely to turn unlawful. P. C. 1973, do hereby prohibit, with immediate effect from 1700 hours on 14.03.2019, till the completion of Lok Sabha Election, 2019, the following activities in the area described by the schedule below. (i) The assembly of 5 or more persons which is likely to turn unlawful. (ii) The carrying of firearms, sticks, stones, weapons or object of any description which can be used as offensive weapons and (iii) The carrying of licensed arms and ammunitions. As there is emergency and the circumstances do not permit the serving of a due notice upon whom this order is directed this order is passed ex-parte. This order shall not apply to the government agencies or functionaries involved in the enforcement of law and order. Copy of this order shall be pasted on the notice boards of the District Magistrate. Ukhrul District, the Superintendent of Police, Ukhrul District, Manipur. Wide publicity thereof in the scheduled area shall also be caused by the Officer-in-Charge of the police station having jurisdiction over the said area. SCHEDULE The whole are under the revenue jurisdiction of Ukhrul District. Given under my hand and seal of this court on this day the 14th of March, 2019. Sd/- Dr. Harmit Singh Pahuja District Magistrate, Ukhrul District" 3. Learned counsel for the petitioners pleads that the District Magistrate under the guise of a prohibitory order has curtailed the freedom of movement, rights of the individual and citizens. The impugned order is bad because there are no sufficient grounds to proceed to pass the order under Section 144 Cr.P.C. The opinion of the District Magistrate appears to be subjective. 4. As to the rights of a citizen as to invoke Article 19 of the Constitution of India, the learned counsel relied upon a decision of the Hon'ble Supreme Court reported in (1950) SCR 519 equivalent to (1950) AIR SC 211, Dr. N.B.Khare v. The State of Delhi. In the said case, the provision of East Pubjab Public Safety Act, 1949 and the order of externment was challenged. The Full Bench dismissed the petition and while considering the scope of Article 19(5) of the Constitution of India, held as follows at para No.4. "4. In my opinion, clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. "4. In my opinion, clause (5) must be given its full meaning. The question which the Court has to consider is whether the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe- guards against the abuse of the power given to the executive authority to administer the law is not relevant for the true interpretation of the clause. The Court, on either interpretation, will be entitled to consider whether the restrictions on the right to move throughout India, i.e., both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions. While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substantive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the procedure under which the exercise of the right may be restricted, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word "reasonable" as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. it seems that the narrow construction sought to be put on the expression, to restrict the Court's power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not concerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful." 5. I am not concerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful." 5. Learned counsel for the petitioner also relied upon the decision of the Hon'ble Supreme Court in the case of Pathumma & ors. v. State of Kerala & ors. reported in (1978) AIR SC 771. In the above case, the issue was in relation to the constitutionality of the Kerala Agriculturists Debt Relief Act, 1970. Para No.7 of the decision was relied upon before this Court to emphasis the need to guarantee the freedom that a citizen may be allowed to enjoy in terms of under Article 19 of the Constitution of India. Para No. 7 of the decision reads as follows:- "7. The first plank of argument by learned counsel for the, appellants is that the Act was violative of Article 19(1)(f) of the Constitution inasmuch as it takes away the right to hold property as guaranteed by Article 19 (1) (f). Article 19 (1) (f) may be extracted thus:- All citizens shall have the right (f) to acquire, hold and dispose of property. It was contended that in the present case the appellants had acquired valid title to the property after having purchased it at the auction sale in execution of a decree against the debtors. After the sale the properties vested, in the appellants and the law which invaded their right to the property was clearly violative of Article 19(1) (f) of the Constitution. There can be no doubt that Article 19 guarantees all the seven freedoms to the citizen of the country including the right to hold, acquire and dispose of property. It must, however, be remembered that Article 19 confers an absolute and unconditional right which is subject only to reasonable restrictions to be placed by Parliament or the legislature in public interest. It must, however, be remembered that Article 19 confers an absolute and unconditional right which is subject only to reasonable restrictions to be placed by Parliament or the legislature in public interest. Clause (5) of Article 19 runs thus: "Nothing in sub-clauses (d), (e) and (f) of the said clause shall effect the operation of any existing law in so far as it imposes, or prevent the state from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe". 6. Learned counsel for the petitioner pleads that the restriction of assembly of 5 or more persons will impinge on the individual liberty of the citizens of the Ukhrul District. The learned counsel has no reservation on restriction Nos.2 and 3, namely, fire-arms, etc. It is pleaded considering the fact that the election for the 2019 Lok Sabha is going on, the right to assemble and to express views should not be curtailed. 7. The plea of the learned counsel for the petitioner that the impugned proceeding is in violation of under Article 19(5) of the Constitution of India is misplaced. The Hon'ble Supreme Court has held that a right conferred under Article 19 of the Constitution of India will be subject to reasonable restriction. In the present case, the District Magistrate has exercised the power under Section 144 Cr.P.C. based on the report which he has received in relation to the Lok Sabha Election, 2019. In order to ensure that the public tranquillity, breach of peace and to ensure that there is no endangerment to human lives and properties, the order has been passed. Apprehending that the assembly of persons may turn unlawful, the authority chose to impose such restriction. The impugned proceeding under Section 144 Cr.P.C. was issued in exercise of powers under Section 144 (2) Cr.P.C. which reads as follows:- "144. Power to issue order in urgent cases of nuisance of apprehended danger. Apprehending that the assembly of persons may turn unlawful, the authority chose to impose such restriction. The impugned proceeding under Section 144 Cr.P.C. was issued in exercise of powers under Section 144 (2) Cr.P.C. which reads as follows:- "144. 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, 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." A reading of the impugned proceeding shows that it is based on a report and the authority had sufficient grounds to come to the conclusion that there is a likelihood of serious breach of peace and disturbance to public tranquillity which may endanger human lives and properties. While doing so, the authority has kept in mind the scope of unlawful assembly as set out in Chapter-X, Section 129 of the Cr.P.C. and thought it fit to issue the impugned proceeding in exercise of power under Section 144(2) of the Cr.P.C. The provisions of Criminal Procedure of Code enable the authority to exercise this power in urgent cases where he apprehends danger as mentioned above. 8. 8. The plea of the petitioner that such exercise of power is arbitrary and unbridled and curtails individual liberty appears to be untenable because the restriction is only with regard to assembly of 5 or more persons which is likely to turn unlawful given the report that he has received that anti-social elements are likely to indulge in unlawful activities. This decision of the authority is based on administrative exigencies and the inputs that they received as a District Magistrate. It may not be proper for the Court to find fault with such decision of the District Magistrate who are bound by law to ensure that there is public peace and tranquillity and safeguard human lives. 9. The provision of Section 144 Cr.P.C. has an inbuilt element of procedural safeguard. Section 144 (4) Cr.P.C. provides the period for which the order shall be in force and it gives the State Government power to extend the said period. Section 144(5) Cr.P.C. provides that the aggrieved person may make an application to rescind or alter the order made under this Section. Needless to say that the Magistrate may himself, on his own motion, rescind or alter the order. Dehors the above, Section 144(6) Cr.P.C. empowers the State Government, either on its own motion or on an application of a person aggrieved, to rescind or alter the order made by it under proviso to sub-section (4) of Section 144 Cr.P.C.. The procedural aspects of considering this application is dealt with under Section 144 (7) Cr.P.C. and the same reads as follows:- "(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." 10. In this case, the petitioners stated in para No.9 of their affidavit that they have made a representation for revocation or modification of the impugned order. Annexure-A/5 is dated 15.3.2019. The law provides for an opportunity of hearing and hence, such application can be considered by the District Magistrate concerned. The petitioners can agitate their grievance before the authority. In this case, the petitioners stated in para No.9 of their affidavit that they have made a representation for revocation or modification of the impugned order. Annexure-A/5 is dated 15.3.2019. The law provides for an opportunity of hearing and hence, such application can be considered by the District Magistrate concerned. The petitioners can agitate their grievance before the authority. The plea of the petitioners that the impugned order offends Article 19 of the Constitution of India does not merit consideration. We find that the restriction imposed is for the purpose of completion of Lok Sabha Election, 2019 and the intention behind such order is to ensure public tranquillity and avoid breach of peace, thereby ensuring that there is no endangerment to human life or property. Since the petitioners have themselves stated that the restrictions No. 2 and 3 are not objected to, we find that the restrictions regarding assembly of 5 or more persons cannot be said to be unreasonable. This is based on material facts. This Court is not inclined to go into the merits of the decision taken as the authority has acted under the four corners of the laws. In any event, when the statute provides for a remedy and that remedy has been exercised by the petitioners, the question of intradicting the impugned proceeding does not arise. Accordingly, we find no merit in the petition and the same is dismissed.