Whenever it appears to a Magistrate—who may be a district Magistrate, a sub-divisional Magistrate or any other specially empowered executive Magistrate—that: (a) immediate prevention of a public nuisance, or (b) speedy remedy of an apprehended danger is desirable, he may issue a written order which must set forth the material facts of the case and be served as a summons. The order must direct any person: (a) to abstain from a certain act or (b to take certain order with respect to certain property in his possession or under his management.
The direction can, however, be given only where the Magistrate considers that such direction is likely to prevent : (i) obstruction, annoyance or injury to any person lawfully employed, or (ii) danger to human life, health or safety, or (iii) disturbance of the public tranquility, or a riot, or any affray.
In cases of emergency or where the circumstances do not admit of personal service, such an order can be passed ex parte, i.e., in the absence of the other party. The order may be directed to a particular individual, or to a person residing in a particular place of area, or to the public generally when frequenting or visiting a particular place or area.
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ADVERTISEMENTS:
The order can, at the most remain in force for two months from the making thereof but in cases of danger to human life, health or safety or a likelihood of riot or an affray, the State Government may, by notification, extend it for a longer period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired.
The Magistrate may rescind or alter the order either suo moto, i.e., on his own motion or on the application of the aggrieved person. The State Government may also suo motu, or on the application of the aggrieved party, rescinds or alters any order. On receipt of such an application the applicant will have a right of hearing and of showing cause against the order. If the application is rejected, the Magistrate or the State Government, as the case may be, shall record in writing his reasons for doing so. (Section 144)
The powers given to the Magistrates mentioned above under Section 144, Cr.P.C. are very wide and must be exercised with discretion and discrimination. The urgency of a case of nuisance or apprehended danger is essential to its treatment under Section 144, Cr.P.C. and the orders to be passed under this section must be of a temporary nature unless in special cases the Government, by notification, extends it for a further period not exceeding six months.
ADVERTISEMENTS:
The object of Section 144, Cr.P.C. certainly cannot be to oust one particular person or party which is acting under the colour of office and put another person or party in possession of the property or in the management of the institution. It is a different matter that the title of such person or party can be challenged in civil court.
The proper Course for the Magistrate is to find out which party is wrong and if he finds on the evidence that the second party is in the wrong and is interfering unnecessarily with the exercise of the legal powers of the first party, he ought to bind down the second party restraining them from committing any act which may lead to a breach of peace.
(Anjani Nandan Misra v. State of U.P., 1976 A.I.R. 2 S.C.).