ASN 1 WP-3339.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3339 OF 2011 P.B.Sawant and ors. ..Petitioners. Vs. District Collector/District Magistrate, District Ratnagiri and ors. ..Respondents. Mr. Sunip Sen with Prabhakar Jadhav i/by V.P.Sawant for the Petitioners. Mr. S.J.Shinde, ‘A’ Panel Counsel for Respondent Nos.1 to 3. CORAM : MOHIT S. SHAH, C. J. AND SMT. ROSHAN DALVI, J. DATE : 14 NOVEMBER 2011 ORAL ORDER : (Per Chief Justice) In this petition under Article 226 of the Constitution the petitioners, three in number, have challenged the orders passed by the District Magistrate, Ratnagiri issued under Section 144 of the Code of Ciminal Procedure and have prayed that the respondents be directed not to restrain the petitioners from exercising their fundamental rights of free travel of assembly and of speech on grounds of potential law and order problems. The petitioners have also prayed for direction that the respondents be directed to allow the petitioners to go to any part of Ratnagiri District to propagate their point of view on the proposed Jaitapur Nuclear Power Plant and for that purpose to hold meetings and demonstrations. ASN 2 WP-3339.sxw 2. Mr. Sen, learned counsel for the petitioners has submitted that the stand taken by the respondents in the affidavit dated 30 April 2011 of the District Magistrate, Ratnagiri is that as per the reports received from the Superintendent of Police, Ratnagiri, there was possibility of breach of law and order problem at the project site and therefore, the District Magistrate passed orders on 22 October 2010, 2 December 2010 and 5 March 2011 under Section 144 of the Code of Criminal Procedure against the petitioner Nos. 1 and 3 and Smt. Sulbha Brahme of Pune. The learned counsel for the petitioners further submitted that as held by the Apex Court in Madhu Limaye and another Vs. Sub Divisional Magistrate A.I.R. 1971 S.C.2486, the restrictions on the freedoms cannot be imposed on the ground of law and order problem as the restrictions can be imposed for maintaining public order as provided in Article 19(2) of the Constitution. It is further submitted that “law and order” is a wider expression than “public order”. 3. The learned counsel for the petitioners further relied on the decision of the Apex Court in Acharya Jagdishwaran and Avadhuta etc. Vs. Commissioner of Police, Calcutta and another AIR 1984 S.C.51 in support of the contention that successive orders cannot be made under Section 144 (4) of the Code of Criminal Procedure and that the order under Section 144 of the Code of Criminal Procedure can be made for the maximum period for six months. It is also submitted that since such orders are being made from October 2010, the respondents ASN 3 WP-3339.sxw are acting illegally and without jurisdiction in restraining the petitioners from going to Jaitapur for the last one year. 4. On the other hand, learned A.G.P. Mr. Shinde has opposed the petition and submitted that during his visit to the site on 14 September 2010 petitioner No.2 had incited the crowd and that the presence of petitioner No.2 on the site is likely to create law and order problem and that violent incidents may take place. Reliance is also placed on the affidavit of the Superintendent of Police, Ratnagiri. 5. The learned A.G.P. also submits that the orders under Section 144 of the Code of Criminal Procedure were passed in October 2010, December 2010 and March 2011 and therefore, the present petition cannot be entertained as orders under Section 144 have to be passed depending on the situation prevailing at the time of passing order and therefore, this petition may not be entertained to direct the respondents as to whether such orders should be passed in future or not. 6. In rejoinder, the learned counsel for the petitioner has placed reliance on the decision of Constitution Bench of the Apex Court in Himat Lal K. Shah Vs. Commissioner of Police, Ahmedabad (1973) 1 SCC 227 in support of the contention that merely because some untoward incident might have taken place in the past cannot be a ground for not granting permission to hold a public meeting in future. ASN 4 WP-3339.sxw 7. Having heard the learned counsel for the parties, we are of the view that the petition does not deserve to be dismissed on the ground that the orders were passed under Section 144 of the Code of Criminal Procedure. The petitioners have raised the issue about the petitioners’ fundamental rights under Article 19(1) (a), (b) and (d). In the past the petitioners were prevented from going to Ratnagiri District on the ground that law and order problem will be created. As held by the Apex Court Madhu Limaye’s case (supra), the restrictions on fundamental right under Article 19(1)(a) and (b) can be imposed on the ground of public order and not on the ground of law and order problem. The distinction between two expressions has been explained by Constitution Bench of the Supreme Court in Ram Manohar Lohia Vs. State of Bihar A.I.R. 1966 SC, 740 and later in Madhu Limaye and another Vs. Sub Divisional Magistrate, Monghyr and others, A.I.R. 1971 SC, 2486 in the following words:- “18. In the next case of this Court reported in (1966) 1 SCR 709 = AIR 1966 SC 740), it was pointed out that for expounding the phrase maintenance of public order’. “One has to imagine three concentric circles, Law and order represents the largest circle within which is the next circle representing public order and the smallest circle represents the security of the “State”. All cases of disturbances of public tranquillity fall in the largest circle but some of them are outside “pubic order for the purpose of the phrase “maintenance of pubic order”, similarly every breach of public order is not necessarily a case of an act likely to endanger the security of the State. ASN 5 WP-3339.sxw 19. Adopting this test we may say that the State is at the centre and society surrounds it. Disturbances of society go in a broad spectrum from mere disturbances of the serenity of life to jeopardy of the State. The acts become graver and graver as we journey from the periphery of the larger circle towards the centre. In this journey we travel first through public tranquillity then through public order and lastly to the security of the State. 20. In dealing with the phrase “maintenance of public order” in the context of preventive detention, we confined the expression in the relevant Act to what was included in the second circle and left out that which was in the larger circle. But that consideration need not always apply because small local disturbances of the even tempo of life, may in a sense be said to affect ‘public order’ in a difference sense, namely, in the sense of a state of law abidingness vis-a-vis the safety of others. In our judgment the expression ‘in the interest of public order’ in the constitution is capable of taking within itself. Not only those acts which disturb the security of the State or within ordre publique as described but also certain acts which disturb public tranquillity or are breaches of the peace. It is not necessary to give to the expression a narrow meaning because. As has been observed, the expression ‘in the interest of public order’ is very wide. Whatever may be said of maintenance of public order in the context of special laws entailing detention of persons without a trial on the pure subjective determination of the Executive cannot be said in other circumstances. In the former case this Court confined the meaning to graver episodes not involving cases of law and other which are not disturbances of public tranquillity but of ordre publique. ASN 6 WP-3339.sxw 21. It was argued that there cannot be two kinds of detentions one by Magistrates under the Code of Criminal Procedure and another under laws made for preventive detention under Art. 22 of the Constitution. In our opinion the area of the two is entirely different and there is, therefore, good classification. We now proceed consider the impugned provisions of the Code in the light of what we have said above.” The Supreme Court then explained the scope of powers under Section 144 of the Criminal Procedure Code in the following words:- “25. The gist of action under S. 144 is the urgency of the situation, its efficacy in the likelihood of being able to prevent some harmful occurances. As it is possible to act absolutely and even ex parte it is obvious that the emergency must be sudden and the consequences sufficiently grave. Without it the exercise of power would have no jurisdiction. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand further judicial security in the next for the exercise of the power, in its efficacy and in the extent of its application. There is no general proposition that an order under section 144, Criminal Procedure Code cannot be passed without taking evidence : see Mst. Jagrupa Kumari V. Chotay Narain Singh, (1936) 37 Cri. L.J. 95(part) which in our opinion is correct in laying down this proposition. These fundamental facts emerge from the way the occasions for the exercise of the power are mentioned. Disturbances of public tranquillity, riots and affray lead to subversion of public order unless they are prevented in time. Nuisances dangerous to human life, health or safety have no doubt to be abated and prevented. We are, however, not concerned with this part of the section and the validity of this part need not be decided here. In so ASN 7 WP-3339.sxw far as the other parts of the Section are concerned the key note of the power is to free society from menace of serious disturbances of a grave character. The Section is directed against those who attempt to prevent the exercise of legal rights by others or imperil the public safety and health. If that be so the matte must fall within the restrictions which the Constitution itself visualizes as permissible in the interest of public order, or in the interest of the general public. We may say, however, that annoyance must assume sufficiently grave proportions to bring the matter within interests of public order”. 8. In view of the aforesaid distinction between the expressions “public order” and “law and order” it is necessary to note that for the incident in respect of which petitioner No.2 has been prosecuted for offences punishable under Sections 180 and 188 of the Indian Penal Code, the said petitioner has already filed Criminal Writ Petition No.808 of 2011 and another Division Bench of this Court has already admitted the petition and by orders dated 12 July 2011 and 25 July 2011 granted ad interim stay restraining from proceeding with the prosecution against the petitioner”. 9. In view of the above, we find that the petitioners have made out a case for grant of appropriate relief. Accordingly, the respondent State shall not restrain the petitioners from entering Ratnagiri District. As far as holding of public meeting is concerned, the petitioners may apply to the concerned authority for permission to hold such meeting and application for permission to hold meeting shall be considered by the authority in accordance with law and in light of the observations made in this order. ASN 8 WP-3339.sxw 10. It is clarified that this order does not preclude the respondents from exercising their statutory powers including the powers under Section 144 of the Code of Criminal Procedure. But while exercising such powers, the respondents shall take into consideration the observations made in this order. 11. Writ Petition is accordingly disposed of in terms of the above order. CHIEF JUSTICE ( SMT. ROSHAN DALVI, J. )