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Final Draft- Criminal Law -II

Maintenance of Public Order and Tranquillity


Term paper towards the fulfilment of assessment in the subject of
Criminal Law- II

Researched & Submitted by: Asession and


Supervision by :
Ravi Prakash
Fr. Peter Ladis F
B.A. LL.B. (Hons.) Lecturer of Law

2nd Year, 4th Semester CNLU,Patna

Roll no. 1362

CHANAKYA NATIONAL LAW UNIVERSITY,


PATNA

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Final Draft- Criminal Law -II

Winter Session (January-May), 2017

Table of Contents
ACKNOWLEDGEMENT............................................................................................ 3
RESEARCH METHODOLOGY.................................................................................... 4
Objectives of the Study:...................................................................................... 4
Methodology....................................................................................................... 4
Sources of Data.................................................................................................. 4
Hypothesis.......................................................................................................... 4
LEGAL PROVISION IN REGARDS TO THE MAINTENANCE OF PUBLIC ORDER...........5
POWERS OF POLICE IN MAINTENANCE OF PUBLIC ORDER...................................10
Provisions under Police Act, 1861.....................................................................11
CONSTITUTIONAL VALIDITY OF POLICE POWERS..................................................13
Article 21 and the Administrative Machinery....................................................16
CONCLUSION....................................................................................................... 18
BIBLIOGRAPHY..................................................................................................... 20

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ACKNOWLEDGEMENT
Writing a project is one of the most significant academic challenges, I have ever faced.
Though this project has been presented by me but there are many people who remained in
veil, who gave their all support and helped me to complete this project.

First of all I am very grateful to my subject teacher Fr. Peter Ladis F without the kind support
and help of whom the completion of the project was a herculean task for me. He donated his
valuable time from his busy schedule to help me to complete this project and suggested me
from where and how to collect data.

I am very thankful to the librarian who provided me several books on this topic which proved
beneficial in completing this project.

I acknowledge my friends who gave their valuable and meticulous advice which was very
useful and could not be ignored in writing the project.

Last but not the least, I am very much thankful to my parents and family, who always stand
aside me and helped me a lot in accessing all sorts of resources.

I thank all of them!

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RESEARCH METHODOLOGY
Objectives of the Study:
The researcher in this work:

1) shall be doing an analytical study on the maintenance of Public Order by the


administration,
2) shall be studying the steps taken in public discourse by the persons authorised by law
to maintain the tranquillity,
3) shall be looking upon various aspects and interpretations made in this regard by the
High courts and the Apex court of India with the help of case laws.

Methodology
Research method: The topic of this project is such that it will require the researcher more to
go through the Doctrinal mode of research with the help of books available in the CNLU
LIBRARY, some previous researches and also some authenticated websites present on the
Internet.

Sources of Data
Primary Source: Statutes, Bare acts.

Secondary Source: Articles on the maintenance of Public Order and Tranquillity, Books and
Commentaries on Administrative Machinery in India, Journals.

Hypothesis
The researchers hypotheses in this project are as follows:

1) In maintenance of Public Order and Tranquillity the Police is vested with unfettered
powers.
2) The powers given to police to maintain Public Order infringes Article 21 of the
constitution.

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LEGAL PROVISION IN REGARDS TO THE MAINTENANCE


OF PUBLIC ORDER
The maintenance of Public Order and to ensure tranquillity in the public discourse is the
primary objective of any government. For a country to grow, develop and reach new heights
of good governance, it is of utmost importance that its government should be able to give its
citizens a peaceful and egalitarian environment. In a situation of failure to provide the above
the consequences can be dire and unpleasant. When the administrative machinery of a
country will be unable to maintain the public order in its civil society then it society may
eventually be subjected to a situation of chaos and panic and ultimately would be detrimental
for the functioning of the administrative machinery in the state as well as will pose a threat to
the lives of the citizens who want to live peacefully.

In order to maintain the public order and tranquillity among the people of the society the
lawmakers of our country have taken commendable steps. The legal provisions pertaining to
public order and tranquillity have been primarily enshrined in the Code of Criminal
Procedure, 1973. Though, various laws in regards to this matter have been also formulated
subsequently.

The Chapter 10 of the Code of Criminal Procedure, 1973 bearing the title Maintenance of
Public Order and Tranquillity deals with several provisions which represent the mechanism
of the procedure. This chapter encompasses a total of 21 sections which deal with the
procedural steps taken in the maintenance of public order and tranquillity. These sections
have been discussed below:

Section 129 Dispersal of assembly by use of civil force

1) Any Executive Magistrate or office in charge of a police station or, in the absence of
such officer in charge, any police officer, not below the rank of a sub-inspector, may
command any unlawful assembly, or any assembly of five or more persons likely to
cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty
of the members of such assembly to disperse accordingly.
2) If, upon being so commanded, any such assembly does not disperse, or if, without
being so commanded, it conducts itself in such a manner as to show a determination,
not to disperse, any Executive Magistrate or police officer referred to in Sub-Section
(1), may proceed to disperse such assembly by force, and may require the assistance
of any make person, not being an officer or member of the armed forces and acting as

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such, for the purpose of dispersing such assembly, and, if necessary, arresting and
confining the persons who form part of it, in order to disperse such assembly or that
they may be punished according to law.1

Section 130 Use of armed forces to disperse assembly

1) If any such assembly cannot be otherwise dispersed, and if it is necessary for the
public security that it should be dispersed, the Executive Magistrate of the highest
rank, who is present may cause it to be dispersed by the armed forces.
2) Such Magistrate may require any officer in command of any group of persons
belonging to the armed forces to disperse the assembly with the help of the armed
forces under his command, and to arrest and confine such persons forming part of
it as the Magistrate may direct, or as it may be necessary to arrest and confine in
order to disperse the assembly or to have them punished according to law.
3) Every such officer of the armed forces shall obey such requisition in such manner
as he thinks fit, but in so doing he shall use as little force, and do as little injury to
person and property, as may be consistent with dispersing the assembly and
arresting and detaining such persons.2
Section 131 Power of certain armed force officers to disperse assembly

When the public security is manifestly endangered by any such assembly and no Executive
Magistrate can be communicated with, any commissioned or gazette officer of the armed
forces may disperse such assembly with the help of the armed forces under his command, and
may arrest and confine any persons forming part of it, in order to disperse such assembly or
that they may be punished according to law, but if, while he is acting under this section, it
becomes practicable for him to communicate with an Executive Magistrate, he shall do so,
and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or
shall not continue such action.3

Section 132 Protection against prosecution for acts done under preceding sections

1 Code of Criminal Procedure, 1973

2 Ibid.

3 Ibid.

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1. No prosecution against any person for any act purporting to be done under section 129,
section 130 or section 131 shall be instituted in any Criminal Court except:
a. with the sanction of the Central Government where such person is an officer or
member of the armed forces;
b. with the sanction of the State Government in any other case.
2-

a. No Executive Magistrate or police officer acting under any of the said sections in
good faith;
b. no person doing any act in good faith in compliance with a requisition under section
129 or section 130;
c. no officer of the armed forces acting under section 131 in good faith;
d. no member of the armed forces doing any act in obedience of any order which he was
bound to obey, shall be deemed to have thereby, committed an offence.

3. In this section and in the preceding sections of this Chapter,

a. the expression armed forces means the military, naval and air forces, operating as
land forces and includes any other Armed Forces of the Union so operating;
b. officer in relation to the armed forces, means a person commissioned, gazetted or in
pay as an officer of the armed forces and includes a junior commissioned officer, a
warrant officer, a petty officer, a non-commissioned officer and a non-gazetted
officer;
c. member in relation to the armed forces, means a person in the armed forces other
than an officer.4

Section 133 Conditional order for removal of nuisance

1. Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive


Magistrate specially empowered in this behalf by the State Government on receiving
the report of a police officer or other information and on taking such evidence (if any)
as he thinks fit, considers.-
a. that any unlawful obstruction or nuisance should be removed from any public
place or from any way, river or channel which is or may be lawfully used by
the public; or
b. that the conduct of any trade or occupation or the keeping of any goods or
merchandise; is injurious to the health or physical comfort of the community,

4 Code of Criminal Procedure, 1973

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and that in consequence such trade or occupation should be prohibited or


regulated or such goods or merchandise should be removed or the keeping
thereof regulated: or
c. that the construction of any building, or the disposal of any substance, as is
likely to occasion conflagration or explosion, should be prevented or stopped;
or
d. that any building, tent or structure, or any tree is in such a condition that it is
likely to fall and thereby cause injury to persons living or carrying on business
in the neighbourhood or passing by, and that in consequence the removal,
repair or support of such building, tent or structure, or the removal or support
of such tree, is necessary; or
e. that any tank, well or excavation adjacent to any such way or public place
should be fenced in such manner as to prevent danger arising to the public; or
f. that any dangerous animal should be destroyed, confined or otherwise
disposed of,
Such Magistrate may make a conditional order requiring the person causing
such obstruction or nuisance, or carrying on such trade or occupation, or
keeping any such goods or merchandise, or owning, possessing or controlling
such building, tent, structure, substance, lank, well or excavation, or owning or
possessing such animal or tree, within a time to be fixed in the order-
i. to remove such obstruction or nuisance; or
ii. to desist from carrying on, or to remove or regulate in such manner as
may be directed, such trade or occupation, or to remove such goods or
merchandise, or to regulate the keeping thereof in such manner as may
be directed; or
iii. to prevent or stop the construction of such building, or to alter the
disposal of such substance; or
iv. to remove, repair or support such building, tent or structure, or to
remove or support such trees; or
v. to fence such tank, well or excavation; or
vi. to destroy, confine or dispose of such dangerous animal in the manner
provided in the said order; or, if he objects so to do, to appear before
himself or some other Executive Magistrate subordinate to him at a
time and place to be fixed by the Order, and show cause, in the manner
hereinafter provided, why the order should not be made absolute.
2. No order duly made by a Magistrate under this section shall be called in question in
any Civil Court. Explanation- A" public place" includes also property belonging to the

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State, camping grounds and grounds left unoccupied for sanitary or recreative
purposes.

And further the sections 134, 135, 136, 137, 138, 139, 140, 141, 142, 143, 144, 144A, 145,
146, 147 and 148 deal with provisions such as Service or notification of Order, Person to
whom order is addressed to obey or show cause, Consequences of his failing to do so,
Procedure where existence of public right is denied, Procedure where he appears to show
cause, Power of Magistrate to direct local investigation and examination of an expert, Power
of Magistrate to furnish written instructions, etc., Procedure on order being made absolute
and consequences of disobedience, Injunction Pending Inquiry, Magistrate may prohibit
repetition or continuance of public nuisance, Power to issue order in urgent cases of nuisance
or apprehended danger, Power to prohibit carrying arms in procession or mass drill or mass
training with arms, Procedure where dispute concerning land or water is likely to cause
breach of peace, Power to attach subject of dispute and to appoint receiver, Dispute
concerning right of use of land or water and Local Inquiry respectively.

POWERS OF POLICE IN MAINTENANCE OF PUBLIC ORDER


The Police force in the country is entrusted with the responsibility of maintenance of public
order and prevention and detection of crimes. Each state and union territory of India has its
own separate police force. Article 246 of the Constitution of India designates the police as a

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state subject, which means that the state governments frame the rules and regulations that
govern each police force. These rules and regulations are contained in the police manuals of
each state force.

The Police force in the state is headed by the Director General of Police/Inspector General of
Police. Each State is divided into convenient territorial divisions called ranges and each
police range is under the administrative control of a Deputy Inspector General of Police. A
number of districts constitute the range. District police is further sub-divided into police
divisions, circles and police-stations.5

Besides the civil police, states also maintain their own armed police and have separate
intelligence branches, crime branches, etc. Police set-up in big cities like Delhi, Kolkata,
Mumbai, Chennai, Bangalore, Hyderabad, Ahmedabad, Nagpur, Pune, Bhubaneswar-Cuttack
etc. is directly under a Commissioner of Police who enjoys magisterial powers. All senior
police posts in various states are manned by the Indian Police Services (IPS) cadres,
recruitment to which is made on all-India basis.6

The Central Government maintains Central Police forces, Intelligence Bureau (IB), Central
Bureau of Investigation (CBI) , institutions for training of police officers and forensic science
institutions to assist the state in gathering intelligence, in maintaining law and order, in
investigating special crime cases and in providing training to the senior police officers of the
state governments.7

Further, it is here important to mention the provisions enshrined in the Police Act, 1861
pertaining to the role of the police in maintaining the Public Order. The sections related to the
maintenance of Public order in the Police Act, 1861 are as follows:

Provisions under Police Act, 1861


Section 30 of the Police Act, 1861 states that:

5 http://www.mightylaws.in/676/police-functionaries-criminal-procedure-code

6 Ibid

7 Ibid.

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(1) The District Superintendent or Assistant District Superintendent of Police may, as


occasion requires, direct the conduct of all assemblies and processions on the public roads, or
in the public streets or thoroughfares, and prescribe the routes by which, and the times at
which, such processions may pass.

(2) He may also, on being satisfied that it is intended by any persons or class of persons to
convene or collect an assembly in any such road, street or thoroughfare, or to form a
procession which would, in the judgment of the Magistrate of the district, or of the sub-
division of a district, if uncontrolled, be likely to cause a breach of the peace, require by
general or special notice that the persons convening or collecting such assembly or directing
or promoting such procession shall apply for a license.

(3) On such application being made, he may issue a license specifying the names of the
licensees and defining the conditions on which alone such assembly or such procession is to
be permitted to take place and otherwise giving effect to this section: Provided that no fee
shall be charged on the application for, or grant of, any such license.8

Section 30A further states that,

(1) Any Magistrate or District Superintendent of Police or Assistant District Superintendent


of Police or Inspector of Police or any police officer in charge of a station may stop any
procession which violates the conditions of a license granted under the last foregoing section,
and may order it or any assembly which violates any such conditions as aforesaid to disperse.

(2) Any procession or assembly which neglects or refuses to obey any order given under the
last preceding sub-section shall be deemed to be an unlawful assembly.9

Section 31 with the title Police to keep Order in Public Roads states that:

It shall be the duty of the police to keep order on the public roads, and in the public streets,
thoroughfares, ghats and landing-places, and at all other places of public resort, and to
prevent obstructions on the occasions of assemblies and processions on the public roads and
in the public streets, or in the neighbourhood of places of worship, during the time of public
8 The Police Act, 1861 (Act No. 5 of 1861)

9 Ibid.

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worship, and in any case when any road, street, thoroughfare, ghat or landing-place may be
thronged or may be liable to be obstructed.10

Section 32 says that Every person opposing or not obeying the orders issued under the last
three preceding sections, or violating the conditions of any license granted by the District
Superintendent or Assistant District Superintendent of Police for the use of music, or for the
conduct of assemblies and processions, shall be liable, on conviction before a Magistrate, to a
fine not exceeding two hundred taka.11

These above mentioned sections are very significant in regards to the maintenance of Public
Order.

10 The Police Act, 1861 (Act no. 5 of 1861)

11 Ibid.

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CONSTITUTIONAL VALIDITY OF POLICE POWERS


It is often seen that the legal provisions sometimes are at loggerheads with each other. For
example, at times we have seen that the articles of the Constitution of India prima facie seem
contrary to the other provisions and so in these circumstances the apex court i.e. the Supreme
Court of India intervenes in the matter and provides a clear guideline. It is almost unexpected
that a law will absolutely not be in contradiction with another existing law which means that
there are plenty of scenarios where one can easily observe the fact that if any law has been
made then it has been framed after rounds of discussions and given the fact that it may be
violative any other law or rule, it is made justifiable with proper reasoning and rationale.

The Powers of the Administration in the maintenance of the public order and tranquillity have
been specifically mentioned in both Cr.PC and the Police Act, 1861(Powers of the Police).
However the conflicts related to these provisions have also been witnessed in the past. At
times some of the provisions have gained currency immensely because of the controversies
surrounding them. The history has witnessed some of those cases too where the provisions of
the Code of Criminal Procedure have been challenged on the grounds of being
unconstitutional. These matters were latter settled with the intervention of the Supreme
Court.

One of the famous cases where the Constitutional Validity of the Section 144 was challenged
is Babul al Parate v state of Maharashtra AIR 1961 SC 884

Facts:

The Rashtriya Mill Majdoor Sangh (RMS), a trade union in Nagpur entered into an
agreement with the management of the Empress Mills regarding the closure of a Mill for re-
building it and regarding the employment of workers who were employed therein in a third
shift. This agreement was opposed by another trade union, the Nagpur Mill Majdoor Sangh
(NMS). On January 25, 1956, a group of workers belonging to the NMS took out a
procession in the locality where the office of RMS was located. It was said that a scuffle took
place there between the members of both the unions. An offence under section 452 read with
section 147, IPC was registered by the police on January 27, 1956. Thereafter, the members
of NMS took out a procession shouting slogans which, according to the District Magistrate,
were provocative. On the same night a meeting of NMS was held in which it was alleged that
the workers were instigated by the speakers to offer satyagraha in front of the Empress Mill

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and also to take out a procession to the office of the RMS. On January 28, 1956, the workers
belonging to NMS assembled in large numbers blocking the traffic on the road. The District
Magistrate passed an order at 4:00 a.m. on January 29, 1956, which came into force
immediately and was to remain in force for a period of fifteen days prohibiting, inter alia ,
the assembly of five or more persons in certain areas specified in the order.12

The petitioner held a public meeting outside the area covered by the aforesaid order. It is
alleged that at that meeting he criticised the District Magistrate and exhorted the workers to
contravene his order and take out processions in the area covered by the order. Thereupon he
was arrested by the police for having committed the offences already referred to and
produced before a Magistrate. The Magistrate remanded him to jail custody till February 15,
1956. The petitioner's application for bail was rejected on the ground that the accusation
against him related to a non-bailable offence. Thereupon the petitioner moved the High Court
at Nagpur for his release on bail but his application was rejected on February 22, 1956. The
petitioner then presented a petition before the High Court under section 491 of the Code of
Criminal Procedure for a writ of habeas corpus. That petition was dismissed by the High
Court on May 9, 1956. The petitioner then moved the High Court for granting a certificate
under Article 132 of the Constitution.13

The High Court refused to grant the certificate on the ground that in its opinion the case did
not involve any substantial question of law regarding the interpretation of the Constitution
and was also not otherwise fit for grant of a certificate. On April 23, 1956, the petitioner
presented a petition before the Supreme Court. After the proceedings were stayed by the
Supreme Court, the petitioner was released on bail by the trying Magistrate.

Issues:

1. Whether section 144, CrPC in-so far as it relates to placing of restrictions on freedom of
speech and freedom of assembly and confers very wide powers on the District Magistrate and
certain other Magistrates, places unreasonable restrictions on the rights guaranteed under
Article 19(1)(a) and (b) of the Constitution?

12 https://indiankanoon.org/doc/749305/

13 Ibid.

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2. Whether the District Magistrate constitutes the whole legal machinery and the only check
for control on his powers is by way of a petition to him to modify or rescind the order and
that the District Magistrate becomes "a judge in his own cause"? Further, the remedy by way
of a revision application before the High Court against the order of the District Magistrate is
also illusory and thus in effect there can be no judicial review of his order in the proper sense
of that expression.

3. Section 144, CrPC substitutes suppression of lawful activity or right for the duty of public
authorities to maintain order.14

Judgment: The power conferred by section 144 of CrPC can be exercised only in an
emergency and for the purpose of preventing 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. These factors condition the exercise of the power and it
would consequently be wrong to regard that power as being unlimited or untrammelled.
Further, it should be borne in mind that no one has a right to cause obstruction, annoyance or
injury etc. to anyone. Since the judgment has to be of a Magistrate as to whether in the
particular circumstances of a case an order, in exercise of these powers, should be made or
not, we are entitled to assume that the powers will be exercised legitimately and honestly. The
section cannot be struck down on the ground that the Magistrate may possibly abuse his
powers.15

The rights guaranteed by Article 19(1)(a) and (b) are not absolute rights but are subject to
limitations specified in Article 19(2) and (3) of the Constitution. It must be borne in mind that
the provisions of section 144 are attracted only in an emergency. The initial judge of the
emergency is, no doubt, the District Magistrate or the Chief Presidency Magistrate or the
Sub-Divisional Magistrate or any other Magistrate specially empowered by the State
Government. The question of formation of the opinion as to whether there is an emergency or
not must necessarily rest, in the first instance, with 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

14 http://www.the-laws.com/Encyclopedia/Browse/Case?CaseId=009591441000

15 http://lawyersupdate.co.in/LU/20/817.asp

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each and every case. Therefore, the provisions of section 144 which commit the power in this
regard to a Magistrate belonging to any of the classes referred to therein cannot be regarded
as unreasonable. The satisfaction of the Magistrate as to the necessity of promulgating an
order under section 144 CrPC is not made entirely subjective by the section.16

Article 21 and the Administrative Machinery


Article 21 of the Constitution of India states that No person shall be deprived of his life or
personal liberty except according to procedure established by law. After reading the Article
21, it has been interpreted that the term life includes all those aspects of life which go to
make a mans life meaningful, complete and worth living.17

Right to privacy is not enumerated as a Fundamental Right in the Constitution of India. The
scope of this right first came up for consideration in Kharak Singhs Case which was
concerned with the validity of certain regulations that permitted surveillance of suspects. The
minority decision of SUBBA RAO J. deals with this light. In the context of Article 19(1) (d),
the right to privacy was again considered by the Supreme Court in 1975. In a detailed
decision, JEEVAN REDDY J. held that the right to privacy is implicit under Article 21. This
right is the right to be let alone. In the context of surveillance, it has been held that
surveillance, if intrusive and seriously encroaches on the privacy of citizen, can infringe the
freedom of movement, guaranteed by Articles 19(1)(d) and 21. Surveillance must be to
prevent crime and on the basis of material provided in the history sheet. In the context of an
anti-terrorism enactment, it was held that the right to privacy was subservient to the security
of the State and withholding information relevant for the detention of crime cant be nullified
on the grounds of right to privacy. The right to privacy in terms of Article 21 has been
discussed in various cases.18

Intrusion into privacy may be by- (1) Legislative Provision (2) Administrative/Executive
order (3) Judicial Orders. Legislative intrusion must be tested on the touchstone of
reasonableness as guaranteed by the Constitution and for that purpose the Court can go into

16 http://lawyersupdate.co.in/LU/20/817.asp

17 http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-
related-conflicts-1630-1.html

18 Ibid.

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proportionality of the intrusion vis--vis the purpose sought to be achieved. (2) So far as
administrative or executive action is concerned it has to be reasonable having regard to the
facts and circumstances of the case. (3) As to judicial warrants, the Court must have sufficient
reason to believe that the search or seizure is warranted and it must keep in mind the extent of
search or seizure necessary for protection of the particular State interest. In addition, as stated
earlier, common law did recognise rare exceptions for conduct of warrantless searches could
be conducted but these had to be in good faith, intended to preserve evidence or intended to
prevent sudden anger to person or property.

The right of privacy on one hand and power of the State of search and seizure on the other
hand has been the subject matter of judgments not only in India but also in other countries as
well. The Supreme Court referred to American case laws under the Fourth Amendment to the
US Constitution. The Court also referred to Universal Declaration of Human Rights,
European Convention of Human Rights, other treaties and constitutional provisions and held
that the State cannot have unbridled right of search and seizure. In particular, it pointed out
that all public records could always be inspected but it will not be open to Collector under the
impugned amended Section 73 of the Indian Stamp Act, 1899 to direct the production of
records held with banks. These records are copies of private documents. The right to privacy
is to protect the documents which are with the banks. Unless there is reasonable cause or
material to believe that such documents may lead to a discovery of fraud such documents
cannot be inspected. The Court struck down S. 73 giving uncontrolled power to Collector to
authorize any person to take notes or extracts from such documents. Even the rules framed
under the Act did not provide sufficient guidelines or safeguards as to how this power could
be exercised. The Supreme Court referred to US judgments on this subject. It preferred to
follow the minority view in Millers case and took the view that majority decision was
incorrect. It also referred to various articles and comments which have taken the view that
majority judgement was wrong the Court held that documents or copies thereof given to the
bank will continue to remain confidential. The fact that they are given to bank voluntarily
will not mean that they cease to be private records as mentioned above.19

19 http://cis-india.org/internet-governance/blog/privacy/privacy-media-law

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CONCLUSION
It is the fundamental duty of the State to maintain public order. The definition of public order
is given in section 31 of the Police Act of 1861 and requires that order will be maintained on
public roads and in public places, obstruction will not be caused by assemblies and
processions and, when this is read with section 34 which make it an offence for any person to
cause obstruction, inconvenience, annoyance, risk, danger or damage and section 23, which
makes it incumbent upon the police to maintain the public peace and prevent the commission
of offence and of public nuisance, it is clear that public order really means that the actions of
a group of individuals should not impinge on the rights and convenience of any other group.
An assembly of persons who use criminal force in order to cause a public servant to desist
from his duty, resist the execution of any law or legal process, commit mischief or criminal
trespass, deprive any other person of his property, enjoyment of a right of way or peaceful
enjoyment of rights by use of criminal force, or use criminal force to compel a person to do
an illegal act automatically becomes an unlawful assembly under section 141 of the IPC if it
consists of five or more persons. For the purpose of maintenance of public order and
tranquility an Executive Magistrate or a police officer is empowered under Chapter X Cr,P.C.
to cause the assembly to disperse, if need be by use of civil force or with the help of the
armed forces. Every act of disturbance of public order is a cognisable offence, to prevent
which a police officer may arrest the accused under section 151 Cr.P.C. Under Chapter VIII
Cr.P.C. such persons can be bound over for keeping the peace, be of good behaviour and
generally behave in a lawful and orderly manner. The duty of the Executive Magistracy and
the Police to maintain public order is thus clearly laid down by law.

Apart from arrest, binding over a person for good behaviour or using force to disperse an
unlawful assembly, the Executive Magistracy and the Police have the legal authority to
regulate assemblies, public meetings and processions. Whereas under Article 19 of the
Constitution the right to assemble peacefully is guaranteed, reasonable restrictions by law on

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such assembly is permissible under the same Article. After all, the enjoyment of ones
fundamental rights is limited by the requirement that this should not impinge on the
fundamental rights of other citizens. If, therefore, there is an assembly of people or a
procession which obstructs the public way, prevents citizens from going about their lawful
work or endangers the public peace, the authorities are duty bound to step in and prevent any
disruption of public order. The authorities are not only empowered in this behalf by law, they
are duty bound by law to ensure that every assembly of persons works directly within the
confines of what the law permits. If the Executive Magistracy or the Police lays down certain
conditions or prescribes the minimum requirement of what an assembly of persons can or
cannot do, then disobedience of such lawful order is an offence. Apart from the provisions of
the Police Act disobedience of an order promulgated by a public servant lawfully empowered
to promulgate such order is an offence under section 188 IPC. If the defiance of such order
leads to serious offences such as rioting, then it can invite the provisions of sections 147 and
148 IPC. If public servants are assaulted in the process this will be a more serious offence
under section 152 IPC, which would carry a penalty of up to three years rigorous
imprisonment. If arson is caused, property is damaged, citizens are assaulted and grievous
hurt and death is caused to any persons or persons then the provisions of sections 302, 304,
324, 325, 436,438, etc. would all be attracted. The scheme of the law is that citizens will
maintain public order, will be liable to punishment if they cause disorder, damage, hurt or
death that the authorities charged with the maintenance of public order will take necessary
steps and issue necessary orders to maintain public peace and, where necessary, use force to
bring offenders to book, disperse unlawful assemblies and restore public peace.

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Final Draft- Criminal Law -II

BIBLIOGRAPHY

Statutes:

Constitution of India, 1950

Code of Criminal Procedure, 1973

The Police Act, 1861

Web Sources:

1. http://cis-india.org/internet-governance/blog/privacy/privacy-media-law
2. www.legalservicesindia.com
3. http://lawyersupdate.co.in
4. http://www.the-laws.com/Encyclopedia/
5. https://indiankanoon.org/doc/749305/
6. http://www.vifindia.org/print/1307
7. http://devgan.in/criminal_procedure_code
8. http://arc.gov.in/speechcpr.htm
9. https://indconlawphil.wordpress.com/tag/public-order-2/

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