JUDGMENT
Leila Seth, C.J.
1. The main prayer of the two petitioners, who are the secretary and member respectively of the Joint Action Committee of the non gazetted officers of Himachal Pradesh is for quashing annexure P-1, which is an order dated 19th June 1992 passed under Section 144 of the Code of Criminal Procedure, 1973 by respondent No. 2, the District Magistrate, Shimla.
2. An averment has been made in paragraph 10 of this petition regarding the mala fides of “the Hon’ble Chief Minister of Himachal Pradesh”. However, the Chief Minister has not been made a party and Mr. M. S. Chandel, learned counsel for the petitioners, has clearly stated at the Bar that the petitioners are not pressing paragraph 10 of the petition and the allegations of mala fides.
3. Learned counsel for the petitioners submits that the impugned order is arbitrary and void and must be quashed since “the material facts” have not been set out in the said order dated 19th June 1992. He further submits that the fundamental rights of the petitioners under article 19(1) of the Constitution have been infringed and they are prejudiced as they are not aware as to why the order has been passed. He also contends that there was no material justifying the passing of the order, as such, there has been total non application of mind by respondent No. 2, the District Magistrate, Shimla.
4. In order to appreciate these arguments, it is necessary to set out the impugned order which reads:
“Whereas, it has been made to appear to me that there is apprehension of breach of peace and disturbance of public tranquillity because of strike by a section of HP NGOs in some parts of the city.
And Whereas, I am of the opinion that in the interest of safety and public life and property, it is necessary to take action under Section 144 of the Code of Criminal Procedure.
Now, therefore, I, P. C. Kapoor, IAS, District Magistrate, Shimla, in exercise of the powers vested in me under Section 144 of Cr. P.C., do hereby prohibit the following from Mall Road terminal point Chhota Shimla to H.P. Secretariate gate and Subzi Mandi Ground.
1. Holding of public meetings, rallies, taking out of processions and demonstration.
2. Shouting of slogans.
3. Carrying of flags, banners, mashals, hockey stricks and like which are likely to be used as weapons of offence.
4. Assembly of five or more persons, which is likely to cause disturbance of public peace and tranquillity or moving with intention to creat annoyance or obstruction to any peaceful citizen.
This order shall come into force from 19th June, 1992 and shall remain into force till further orders.
This order shall not apply to military/ paramilitary and police forces while on duty and funeral or marriage processions.
This order shall be notified and published through the publicity van of District Public Relations Department, All India Radio and by affixing copies of this order on the Notice Board of District Courts and that of Municipal Corporation, Shimla.
Given under my hand and seal of the District Magistrate this 19th day of June, 1992.”
5. From the said order it is apparent that the District Magistrate was of opinion that it was in the interests of safety and public life and property to take action under Section 144 Cr. P.C. as there was apprehension of breach of peace. The material facts of the case mentioned in the order are that there is an apprehension of breach of peace and disturbance of public tranquillity in some parts of the city because of the strike by a section of the Himachal Pradesh non gazetted officers. Consequently, he prohibited the holding of public meetings, rallies etc., shouting of slogans, carrying of flags, banners, mashals, hockey sticks etc. and assembly of five or more persons as indicated in the order, in two areas of Shimla town: (1) from the Mail Road terminal point Chhota Shimla to Himachal Pradesh Secretariat gate; and (2) the Subzi Mandi grounds.
6. Learned counsel for the petitioners has confined his argument to the debarring of meetings etc. on the Subzi Mandi grounds as he submits that this is the only suitable public place in Shimla for holding of public meetings and rallies. Consequently, he contends that the fundamental rights of the petitioners under Article 19(1) of the Constitution have been infringed. He further says that the strike started on 9th June 1992 and peaceful meetings and demonstrations had been held in the said ground till 18th June 1992 when this order was passed. Consequently an order under Section 144 Cr. P.C. was uncalled for.
7. Yesterday, we asked the learned Advocate General to produce the record today, which he has produced in Court. We have perused the record and find a note indicating that a meeting of the local police officers, sub divisional magistrate alone with other executive magistrates as also the Additional District Magistrate (Law and Order) and the Superintendent of Police, Shimla was held on 18th June 1992 to review the law and order situation arising out of strike of a section of N.G.Os. It is stated therein that “provocative speeches are being delivered by the leaders of the striking employees” to induct violence into the agitation “so that police takes action and more N.G.Os. join strike”. Consequently, it was apprehended that the non gazetted officers may resort to violence at two places initially that is at Subzi Mandi and the area around the Secretariat; because of the topographic location of these two places and because they are thickly populated, it was unanimously felt that if violence erupts it may result in heavy loss of persons and property.
8. This material was placed before the District Magistrate on 19th June 1992 and he has indicated that “In view of the emergent situation to avoid breach of peace, disturbance of public tranquillity and also in the interest of safety of public life and property, I am satisfied that Section 144 of Cr. P.C. is to be imposed at Subji Mandi and area between Mall Road terminal point Chhota Shimla to H. P. Secretariat Gate” prohibiting certain acts.
9. It is, therefore, apparent that there was material on the basis of which the opinion could have been formed and it is not a case of non application of mind of respondent No. 2. Further, the impugned order does indicate the material facts, that there is an apprehension of breach of peace and disturbance of public tranquillity in some parts of the city because of the strike by a section of Himachal Pradesh non gazetted officers. True, the detailed particulars are not given in the order but we are of the view that this will not vitiate the order. The detailed particulars regarding topographic location and provocative speeches etc. were on the record on the basis of which the opinion was formed. The provisions of Section 144 Cr.P.C. only require “the material facts” to be stated and not the grounds or reasons or the detailed substance of the information on which the order is. based. ‘ –
10. We are fortified in our view when we compare the words mentioned in Section 144 Cr. P.C. with the requirement of Sections 111 and 145 Cr. P.C. Whereas Section 144 states that the written order must set out the “material facts of the case”, Section 111 Cr.P.C. provides that the order must state “the substance of the information received” and Section 145 requires that the order must state “the grounds of being so satisfied.” It is, therefore, clear that it is not mandatory to set out the detailed particulars or reasoning behind the formation of opinion or the substance of the information received in the order under Section 144 Cr.P.C. but the material facts must be stated.
11. The contention of learned counsel for the petitioners that “the material facts” in this case means all the facts necessary to formulate a complete cause of action and reasons is not tenable. The decisions of the Supreme Court in Samant N. Balakrishna v. George Fernandez, AIR 1969 SC 1201 and Ajantha Industries v. Central Board of Direct Taxes, New Delhi, AIR 1976 SC 437 relied on by learned counsel for the petitioners are not relevant in the facts of the present case as in Samant N. Balakrishana’s case (supra) the Supreme Court was dealing with the material facts to be set out in an election petition and in Ajantha Industries’ case (supra) it was dealing with the provisions of the Income-tax Act where the section required the recording of reasons in making the order of transfer.
12. In Babulal Parate v. The State of Maharashtra, AIR 1961 SC 884: (1961 (2) Cri LJ 16), while dealing with the vires of Section 144 Cr. P. C., the Supreme Court has observed that it is not possible for the magistrate to set out the facts unless he makes an enquiry or unless he is satisfied about the facts from personal knowledge or on a report made to him which he prima facie accepts as correct. As we have indicated above, a report was made to the magistrate and on the basis of the report he appears to have been satisfied before making the order.
13. There is also no doubt that the provisions of Section 144 Cr. P.C. are attracted only in an emergency. This fact has been noted by the District Magistrate. As opined in paragraph 22 of the above mentioned Supreme Court judgment, there is no doubt the initial judge of the emergency is the District Magistrate; since the maintenance of law and order is the duty and function of the executive department of the State it is inevitable that the question of formation of opinion as to whether there is an emergency must necessarily rest, in the first instance, on those persons through whom the executive exercises its functions and discharges its duties. It would be impracticable and even impossible to expect the State Government itself to exercise those duties and functions in each and every case.
14. There is no dispute that under the provisions of Section 144, Criminal Procedure Code, 1973, the magistrate may either on his motion or on the application of any person aggrieved, rescind or alter any order made under this section. Thus even where an ex parte order is made the person or persons affected thereby have a right to challenge the order of the magistrate and where such a challenge is made, the magistrate shall give an early opportunity to the person concerned of appearing before him and showing cause against the order.
15. It is pertinent to notice that the order passed under Section 144 has been passed by a responsible senior officer i.e. the District Magistrate, Shimla and pertains only to certain limited actions in two areas in Shimla. It is well settled that reasonable restrictions can be placed on the fundamental rights of speech and assembly guaranteed under Article 19(1) in view of the provisions of Articles 19(2) and 19(3) of the Constitution of India. These are not absolute rights but are subject to reasonable restrictions which are necessary to maintain public order. In order to ensure that public order is maintained, anticipatory action or placing of restrictions upon particular kinds of acts in an emergency for the purpose of maintaining public order can be taken and is permissible. The anticipatory action taken by the magistrate under Section 144 Cr. P.C. in an emergency, where danger to public order is genuinely apprehended is something done in the discharge of his duties to maintain order. The action taken and the limited prohibitions imposed have a nexus with the formation of opinion on the available material. A balance has been struck between the fundamental rights of the petitioners and the maintenance of public order.
16. For the reasons outlined above, we are of the view that material facts have been stated in the order and that there was material on the basis of which the impugned order could have been passed; further it is not a case of non application of mind. Consequently we hold that the order is neither void nor arbitrary nor passed for extraneous reasons. The object of Section 144 Cr. P.C. is to preserve public peace and that is what the District Magistrate has sought to do.
The writ petition is accordingly dismissed.