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The High Court has been asked the city police to explain as to how a special executive magistrate can be vested with the power to impose prohibitory orders under section 144 of CrPC for up to six months despite the same being contrary to the fundamental rights of citizens.

“Issue notice (to Delhi Police). You file your counter within two weeks as to how the government can delegate the power to invoke section 144 of Criminal Procedure Code (CrpC) for a period extending up to six months.

“You can’t uniformly, just like that, extend the operation of section 144 as it is in contrast with the fundamental rights of the citizens,” said a bench headed by Chief Justice D Murugesan.

The court, which had fixed the matter for today for issuing directions on a plea for framing guidelines for imposing prohibitory orders under the CrPC, issued the notice to Delhi police and asked it to file a detailed reply. The court slated the matter for further hearing on February 6.

Refusing to frame guidelines, the bench, also comprising Justice V K Jain, however, said, “We will certainly look into the delegation of power to the special executive magistrate (SEM) to impose section 144 of CrPC.

“We will deal with the material (necessary for invoking the provision). We are concerned with the application of mind (by SEM) before passing such an order.”

The counsel appearing for Delhi police, meanwhile, told the court that the prohibitory orders imposed on December 22 at India Gate and adjoining areas is to expire on January 14.

Faced with sudden upsurge against the December 16 gang rape of a paramedical student in a moving bus here, the police had invoked section 144 CrPC to maintain public tranquility and smooth traffic flow in and around India Gate here.

During the hearing, the high court posed some queries on delegation of power to a magistrate by the state government to impose prohibitory orders under section 144 of the CrPC and proceeded to issue notice, being dissatisfied by the response of the Delhi police.

It also expressed concern as to how the government parted with its power and delegated the same to a special magistrate.

Section 144 of the CrPC deals with magistrates’ power to issue prohibitory orders “in urgent cases of nuisance or apprehended danger” to prevent people from frequenting or visiting a public place or gathering there.

The PIL, filed by Delhi-based advocate Anand K Mishra, alleged that the prohibitory order was invoked in an “arbitrary” manner and without following the procedures enshrined under the CrPC.

On the last date of hearing, Mishra’s counsel had argued before the court that “the whole Capital was traumatised over the gang rape and thousands of girl students and others, who do not feel safe, came to join the social movement. It was not a political movement. The section (144 of CrPC) cannot be used to curtail the Constitutional rights.”

He had also cited various apex court judgements including the verdict on the Ramlila Maidan incident involving Baba Ramdev and his supporters and sought framing of guidelines on the issue.

This is not an “isolated” incident, this provision can be invoked in future also and hence, a decision on the plea was required to prevent its arbitrary use, the counsel for the petitioner had said.

Referring to the executive order, by which Section 144 of CrPc was invoked during the anti-rape stir, he said, “obstruction in traffic was given as a reason for invoking the prohibitory orders. What was the emergency? Where are the reasons? In the garb of traffic obstruction, you cannot impose section 144.”

The PIL, filed against the Ministry of Home Affairs, city government and the police, has sought a direction to declare as “unconstitutional and illegal” the prohibitory orders issued on December 22.

“The police has further been acting in derogation of that illegal order imposing total ban and creating curfew-like situation around India Gate restricting the magistrate, lawyers, court staff, people and litigants from approaching Patiala House court complex under the garb that they apprehend problem to public order,” according to it.

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