Final Draft- Criminal Law -II
Maintenance of Public Order and Tranquillity Term Term paper towards the fulfilment of assessment in the subject of Criminal Law- II
Researched Researched & Submitted by: by: Superision by :
Asession and
Rai !ra"ash Fr. Peter Ladis F B.A. LL.B. (ons.!
Lecturer of Law
"nd #ear$ %th &emester
C'L$Patna
)oll no. *+,"
CA'A#A 'ATI'AL LA/ 'I01)&IT#$
PAT'A !a#e $
Final Draft- Criminal Law -II
/inter &ession (2anuar3-4a3!$ "5*6 Table of Contents AC%'(L)D*)+), AC%'(L)D*)+) , . R)S)ARC/ R)S)ARC/ +),/'D'L'*0 +),/'D'L'*0 1 1 'b2ecties of the Study: Study: 1 1 +ethodolo#y +ethodolo#y 1 1 Sources of Data Data 1 /ypothesis /ypothesis 1 L)*AL !R'3ISI' I R)*ARDS ,' ,/) +AI,)AC) 'F !45LIC 'RD)R6 !'()RS 'F !'LIC) I +AI,)AC) 'F !45LIC 'RD)R 'RD)R$7 $7 !roisions under !olice Act8 $9$ $9$ $$ $$ C'S,I,4,I'AL 3ALIDI,0 'F !'LIC) !'()RS !'()RS $. $. Article ;$ and the Administratie +achinery +achinery $ $ C'CL4SI' C'CL4SI' $9 5I5LI'*RA!/0 5I5LI'*RA!/0 ;7
!a#e ;
Final Draft- Criminal Law -II
ACKNOWLEDGEMENT /ritin7 a project is one of the most si7nificant academic challen7es$ I ha8e e8er faced. Thou7h this project has been presented b3 me but there are man3 people who remained in 8eil$ who 7a8e their all support and helped me to complete this project.
First of all I am 8er3 7rateful to m3 subject teacher Fr. Peter Ladis F without the 9ind support and help of whom the completion of the project was a herculean tas9 for me. e donated his 8aluable time from his bus3 schedule to help me to complete this project and su77ested me from where and how to collect data.
I am 8er3 than9ful to the librarian who pro8ided me se8eral boo9s on this topic which pro8ed beneficial in completin7 this project.
I ac9nowled7e m3 friends who 7a8e their 8aluable and meticulous ad8ice which was 8er3 useful and could not be i7nored in writin7 the project.
Last but not the least$ I am 8er3 much than9ful to m3 parents and famil3$ who alwa3s stand aside me and helped me a lot in accessin7 all sorts of resources.
I thank all of them!
!a#e .
Final Draft- Criminal Law -II
RESEARCH METHODOLOGY Objectives of the St!"# The researcher in this wor9: *! shal shalll be doin doin7 7 an anal anal3 3tica ticall stud stud3 3 on the the main mainte tena nanc ncee of Publ Public ic rde rderr b3 the the administration$ "! shall be stud3in stud3in7 7 the steps ta9en ta9en in public public discourse discourse b3 the persons persons authorise authorised d b3 law to maintain the tran;uillit3$ tra n;uillit3$ +! shall shall be loo9in loo9in7 7 upon 8arious 8arious aspects aspects and interp interpret retatio ations ns made in this this re7ard re7ard b3 the i7h courts and the Ape< court of India with the help of case laws.
Metho!olo$" )esearch )esearch method: The topic of this project is such that it will re;uire the researcher researcher more to 7o throu7h the =octrinal mode of research with the help of boo9s a8ailable in the >C'L LIB)A)# LIB)A)# $ some pre8ious researches researches and also some authenticated authenticated websites present present on the ‟
Internet.
So%ces of Data Primar3 &ource: &tatutes$ Bare acts. &econdar3 &ource: Articles on the maintenance of Public rder and Tran;uillit3$ Boo9s and Commentaries on Administrati8e 4achiner3 in India$ 2ournals.
H"&othesis The researcher?s h3potheses in this project are as follows: *! In maintenance maintenance of Public Public rder rder and Tran; Tran;uillit3 uillit3 the the Police Police is 8ested with with unfettered unfettered powers. "! The The powe powers rs 7i8e 7i8en n to police police to main mainta tain in Publ Public ic rder rder infr infrin in7e 7ess Article rticle "* of the constitution.
!a#e 1
Final Draft- Criminal Law -II
LEGAL 'RO()S)ON )N REGARDS TO THE MA)NTENANCE O* '+,L)C ORDER The maintenance of Public rder and to ensure tran;uillit3 in the public discourse is the primar3 objecti8e of an3 7o8ernment. For a countr3 to 7row$ de8elop and reach new hei7hts of 7ood 7o8ernance$ it is of utmost importance that its 7o8ernment should be able to 7i8e its citi@ens a peaceful and e7alitarian en8ironment. In a situation of failure to pro8ide the abo8e the conse;u conse;uenc ences es can be dire dire and unpleas unpleasant. ant. /hen the adminis administrat trati8e i8e machin machiner3 er3 of a countr3 will be unable to maintain the public order in its ci8il societ3 then it societ3 ma3 e8entuall3 be subjected to a situation of chaos and panic and ultimatel3 would be detrimental for the functionin7 of the administrati8e machiner3 in the state as well as will pose a threat to the li8es of the citi@ens who want to li8e peacefull3. In order to maintain the public order and tran;uillit3 amon7 the people of the societ3 the lawma9ers of our countr3 ha8e ta9en commendable steps. The le7al pro8isions pertainin7 to public order and tran;uillit3 ha8e been primaril3 enshrined in the Code of Criminal Procedure$ *6+. Thou7h$ 8arious laws in re7ards to this matter ha8e been also formulated subse;uentl3. The Chapter *5 of the Code of Criminal Procedure$ *6+ bearin7 the title 4aintenance of Public rder and Tran;uillit3? deals with se8eral pro8isions which represent the mechanism of the procedure. This chapter encompasses a total of "* sections which deal with the procedural steps ta9en in the maintenance of public order and tran;uillit3. These sections ha8e been discussed below: Section 129 129 – – Dieral of aembly by ue of ci"il force
*! An3 1
Final Draft- Criminal Law -II such$ for the purpose of dispersin7 such assembl3$ and$ if necessar3$ arrestin7 and confinin7 the persons who form part of it$ in order to disperse such assembl3 or that the3 ma3 be punished accordin7 to law. law.* Section 1#$ – %e of armed force to diere aembly
*! If an3 such assembl3 assembl3 cannot cannot be otherwise otherwise dispersed$ dispersed$ and and if it is necessar3 necessar3 for the the public securit3 that it should be dispersed$ disperse d$ the 1
/hen the public securit3 securit3 is manifestl3 manifestl3 endan7ered endan7ered b3 an3 such assembl3 and no 1
$ Code of Criminal Procedure$ *6+ ; Ibid. . Ibid. !a#e
Final Draft- Criminal Law -II *. 'o prosecution a7ainst an3 person for an3 act purportin7 to be done under section *"$ section *+5 or section *+* shall be instituted in an3 Criminal Court e
*. /hene8er /hene8er a =istrict =istrict 4a7istrate 4a7istrate or a &ub-di8isi &ub-di8isional onal 4a7istrate 4a7istrate or an3 other 1
Final Draft- Criminal Law -II and that in conse;uence such trade or occupation should be prohibited or re7ulated or such 7oods or merchandise should be remo8ed or the 9eepin7 thereof re7ulated: or c. that that the construc constructio tion n of an3 buildin7 buildin7$$ or the dispo disposal sal of an3 substan substance$ ce$ as is li9el3 to occasion confla7ration or e
of$
&uch 4a7istrate ma3 ma9e a conditional order re;uirin7 the person causin7 such obstruction or nuisance$ or carr3in7 on such trade or occupation$ or 9eepin7 an3 such 7oods or merchandise$ or ownin7$ possessin7 or controllin7 such buildin7$ tent$ structure$ substance$ lan9$ well or e
be directed or to pre8 pre8en entt or stop stop the the cons constr truc ucti tion on of such such buil buildi din7 n7$$ or to alte alterr the the
i8. i8.
disposal of such substance or to remo8 remo8e$ e$ repai repairr or supp suppor ortt such such buil buildi din7 n7$$ tent tent or struc structu ture re$$ or to
8. 8i. 8i.
remo8e or support such trees or to fen fence ce suc such h tan tan9$ 9$ well well or or e
hereinafter pro8ided$ wh3 the order should not be made absolute. ". 'o order order dul3 made made b3 a 4a7istrat 4a7istratee under this this section section shall shall be called in ;uesti ;uestion on in an3 Ci8il Court. 1
!a#e 9
Final Draft- Criminal Law -II &tate$ &tate$ campin campin7 7 7round 7roundss and 7round 7roundss left unoccu unoccupie pied d for sanita sanitar3 r3 or recreati recreati8e 8e purposes. And further the sections 1#)$ 1#*$ 1#+$ 1#,$ 1#-$ 1#9$ 1)$$ 1)1$ 1)2$ 1)#$ 1))$ 1)).$ 1)*$ 1)+$ 1), and 1)- deal with pro8isions such as &er8ice or notification of rder$ Person to
whom order is addressed to obe3 or show cause$ Conse;uences of his failin7 to do so$ Procedure where e
'OWERS O* 'OL)CE )N MA)NTENANCE O* '+,L)C ORDER The Police force in the countr3 countr3 is entrusted entrusted with the responsibilit3 responsibilit3 of maintenance maintenance of public public order and pre8ention and detection of crimes. 1ach state and union territor3 of India has its own separate police force. Article "%, of the Constitution of India desi7nates the police as a !a#e =
Final Draft- Criminal Law -II state subject$ which means that the state 7o8ernments frame the rules and re7ulations that 7o8ern each police force. These rules and re7ulations are contained in the police manuals of each state force. The Police force in the state is headed b3 the =irector Deneral of PoliceHInspector Deneral of Police. 1ach &tate is di8ided into con8enient territorial di8isions called ran7es and each police ran7e is under the administrati8e control of a =eput3 Inspector Deneral of Police. A number of districts constitute the ran7e. =istrict police is further sub-di8ided into police di8isions$ circles and police-stations. Besides the ci8il police$ states also maintain their own armed police and ha8e separate intelli7ence branches$ crime branches$ etc. Police set-up in bi7 cities li9e =elhi$ ol9ata$ 4umbai$ Chennai$ Ban7alore$ 3derabad$ Ahmedabad$ 'a7pur$ Pune$ Bhubaneswar-Cuttac9 etc. is directl3 under a Commissioner of Police who enjo3s ma7isterial powers. All senior police posts in 8arious states are manned b3 the Indian Police &er8ices (IP&! cadres$ recruitment to which is made on all-India basis. basis ., The Central Do8ernment maintains Central Police forces$ Intelli7ence Bureau (IB!$ Central Bureau of In8esti7ation (CBI! $ (CBI! $ institutions for trainin7 of police officers and forensic science institutions to assist the state in 7atherin7 intelli7ence$ in maintainin7 law and order$ in in8esti7atin7 special crime cases and in pro8idin7 trainin7 to the senior police officers of the state 7o8ernments.6 Further$ it is here important to mention the pro8isions enshrined in the Police Act$ *J,* pertainin7 to the role of the police in maintainin7 the Public rder. The sections related to the maintenance of Public order in the Police Act$ *J,* are as follows:
'%ovisions n!e% 'olice Act- ./0. Section #$ of the Police Act$ *J,* states that:
http:HHwww.mi7ht3laws.inH,6,Hpolice-functionaries-criminal-procedure-code e-code 6 http:HHwww.mi7ht3laws.inH,6,Hpolice-functionaries-criminal-procedur
Ibid < Ibid. !a#e $7
Final Draft- Criminal Law -II (*! The =istri =istrict ct &uperin &uperinten tenden dentt or Assist Assistant ant =istrict =istrict &uperin &uperinten tenden dentt of Police Police ma3$ ma3$ as occasion re;uires$ direct the conduct of all assemblies and processions on the public roads$ or in the public streets or thorou7hfares$ and prescribe the routes b3 which$ and the times at which$ such processions ma3 pass. ("! e ma3 also$ on bein7 satisfied that it is intended b3 an3 persons or class of persons to con8ene or collect an assembl3 in an3 such road$ street or thorou7hfare$ or to form a procession which would$ in the jud7ment of the 4a7istrate of the district$ or of the subdi8ision of a district$ if uncontrolled$ be li9el3 to cause a breach of the peace$ re;uire b3 7eneral or special notice that the persons con8enin7 or collectin7 such assembl3 or directin7 or promotin7 such procession shall appl3 for a license. (+! n such application bein7 made$ he ma3 issue a license specif3in7 the names of the licensees and definin7 the conditions on which alone such assembl3 or such procession is to be permitted to ta9e place and otherwise 7i8in7 effect to this section: Pro8ided that no fee shall be char7ed on the application for$ or 7rant of$ an3 such license. license .J Section #$. further states that$
(*! An3 4a7istrate or =istrict =istrict &uperintend &uperintendent ent of Police Police or Assistant Assistant =istrict =istrict &uperintend &uperintendent ent of Police or Inspector of Police or an3 police officer in char7e of a station ma3 stop an3 procession which 8iolates the conditions of a license 7ranted under the last fore7oin7 section$ and ma3 order it or an3 assembl3 which 8iolates an3 such conditions as aforesaid to disperse. ("! An3 procession or assembl3 which ne7lects or refuses to obe3 an3 order 7i8en under the last precedin7 sub-section shall be deemed to be an unlawful assembl3. assembl3 . Section #1 with the title Police to 9eep rder in Public )oads? states that:
It shall be the dut3 of the police to 9eep order on the public roads$ and in the public streets$ thorou7hfares$ 7hats and landin7-places$ and at all other places of public resort$ and to pre8ent obstructions on the occasions of assemblies and processions on the public roads and in the public streets$ or in the nei7hbourhood of places of worship$ durin7 the time of public 9 The Police Act$ *J,* (Act 'o. of *J,*! = Ibid !a#e $$
Final Draft- Criminal Law -II worship$ and in an3 case when an3 road$ street$ thorou7hfare$ 7hat or landin7-place ma3 be thron7ed or ma3 be liable to be obstructed. *5 Section #2 sa3s that 18er3 person opposin7 or not obe3in7 the orders issued under the last
three precedin7 sections$ or 8iolatin7 the conditions of an3 license 7ranted b3 the =istrict &uperintendent or Assistant =istrict &uperintendent of Police for the use of music$ or for the conduct of assemblies and processions$ shall be liable$ on con8iction before a 4a7istrate$ to a fine not e
$7 The Police Act$ *J,* (Act no. of *J,*! $$ Ibid. !a#e $;
Final Draft- Criminal Law -II
CONST)T+T)ONAL (AL)D)TY O* 'OL)CE 'OWERS It is often seen that the le7al pro8isions sometimes are at lo77erheads with each other. For e
The The )ash )ashtri tri3a 3a 4ill 4ill 4ajd 4ajdoo oorr &an7 &an7h h ()4& ()4&!$ !$ a trad tradee unio union n in 'a7p 'a7pur ur ente entere red d into into an a7reement with the mana7ement of the 1mpress 4ills re7ardin7 the closure of a 4ill for re buildin7 it and re7ardin7 the emplo3ment of wor9ers who were emplo3ed therein in a third shift. This a7reement was opposed opposed b3 another another trade union$ the 'a7pur 4ill 4ajdoor 4ajdoor &an7h ('4& ('4&!. !. n 2anua 2anuar3 r3 "$ "$ *, *,$$ a 7rou 7roup p of wor9 wor9er erss belo belon7 n7in in7 7 to the the '4& '4& too9 too9 out out a procession in the localit3 where the office of )4& was located. It was said that a scuffle too9 place there between the members of both the unions. An offence under section %" read with section *%6$ IPC was re7istered b3 the police on 2anuar3 "6$ *,. Thereafter$ the members of '4& too9 out a procession procession shoutin7 shoutin7 slo7ans which$ accordin7 to the =istrict =istrict 4a7istrate$ 4a7istrate$ were pro8ocati8e. n the same ni7ht a meetin7 of '4& was held in which it was alle7ed that the wor9ers were insti7ated b3 the spea9ers spea9ers to offer satyagraha offer satyagraha in front of the 1mpress 1mpress 4ill !a#e $.
Final Draft- Criminal Law -II and also to ta9e out a procession to the office of the )4&. n 2anuar3 "J$ *,$ the wor9ers belon7in7 to '4& assembled in lar7e la r7e numbers bloc9in7 the traffic on the road. The =istrict 4a7i 4a7ist strat ratee passe passed d an orde orderr at %:55 %:55 a.m. a.m. on 2anua 2anuar3 r3 "$ "$ *, *,$$ which which came came into into forc forcee immediatel3 and was to remain in force for a period of fifteen da3s prohibitin7$ inter alia $ the assembl3 of fi8e or more persons in certain areas specified in the order. *" The petitioner held a public meetin7 outside the area co8ered b3 the aforesaid order. It is alle7ed that at that meetin7 he criticised the =istrict 4a7istrate 4a7istrate and e
*. /hether section *%%$ CrPC in-so far as it relates to placin7 of restrictions on freedom of speech and freedom of assembl3 and confers 8er3 wide powers on the =istrict 4a7istrate and certain other 4a7istrates$ places unreasonable restrictions on the ri7hts 7uaranteed under Article *(*!(a! and (b! of the Constitution
$; https:HHindian9anoon.or7HdocH6%+ https:HHindian9anoon.or7HdocH6%+5H 5H $. Ibid. !a#e $1
Final Draft- Criminal Law -II ". /hether the =istrict 4a7istrate constitutes the whole le7al machiner3 and the onl3 chec9 for control on his powers is b3 wa3 of a petition to him to modif3 or rescind the order and that the =istrict 4a7istrate becomes Ga jud7e in his own causeG Further$ the remed3 b3 wa3 of a re8ision application before the i7h Court a7ainst the order of the =istrict 4a7istrate is also illusor3 and thus in effect there can be no judicial re8iew of his order in the proper sense of that e
Final Draft- Criminal Law -II each and e8er3 case. Therefore$ the pro8isions of section *%% which commit the power in this re7ard to a 4a7istrate belon7in7 to an3 of the classes referred to therein cannot be re7arded as unreasonable. The satisfaction of the 4a7istrate as to the necessit3 of promul7atin7 an order under section *%% CrPC is not made entirel3 subjecti8e b3 the section. *,
A%ticle 1. an! the A!2inist%ative Machine%" Article "* of the Constitution of India states that E'o person shall be depri8ed of his life or personal libert3 liber t3 e
$9 Ibid. !a#e $
Final Draft- Criminal Law -II proportionalit3 of the intrusion 8is-N-8is the purpose sou7ht to be achie8ed. ("! &o far as administrati8e or e
$= http:HHcis-india.or7Hinternet-7o8ernan http:HHcis-india.or7Hinternet-7o8ernanceHblo7Hpri8ac3Hpri8ac3-media-law ceHblo7Hpri8ac3Hpri8ac3-media-law !a#e $<
Final Draft- Criminal Law -II
CONCL+S)ON It is the fundamental dut3 of the &tate to maintain public order. The definition of public order is 7i8en in section +* of the Police Act of *J,* and re;uires that order will be maintained on public roads and in public places$ obstruction will not be caused b3 assemblies and processions and$ when this is read with section +% which ma9e it an offence for an3 person to cause obstruction$ incon8enience$ anno3ance$ ris9$ dan7er or dama7e and section "+$ which ma9es it incumbent upon the police to maintain the public peace and pre8ent the commission of offence and of public nuisance$ it is clear that public order reall3 means that the actions of a 7roup of indi8iduals should not impin7e on the ri7hts and con8enience of an3 other 7roup. An assembl3 of persons who use criminal force in order to cause a public ser8ant to desist from his dut3$ resist the e
Final Draft- Criminal Law -II such such assemb assembl3 l3 is permissi permissible ble under under the same same Artic Article. le. After all$ all$ the enjo3m enjo3ment ent of one?s one?s fund fundam ament ental al ri7h ri7hts ts is limite limited d b3 the the re;u re;uire ireme ment nt that that this this shou should ld not not impin impin7e 7e on the the fundam fundamenta entall ri7hts ri7hts of other other citi@en citi@ens. s. If$ therefore$ therefore$ there is an assembl assembl3 3 of people people or a procession which obstructs the public wa3$ pre8ents citi@ens from 7oin7 about their lawful wor9 or endan7ers the public peace$ the authorities are dut3 bound to step in and pre8ent an3 disruption of public order. The authorities are not onl3 empowered in this behalf b3 law$ the3 are dut3 bound b3 law to ensure that e8er3 assembl3 of persons wor9s directl3 within the confines of what the law permits. If the 1
!a#e $=
Final Draft- Criminal Law -II
,),L)OGRA'HY
Statute
Constitution of India$ *5 Code of Criminal Procedure$ *6+ The Police Act$ *J,*
4eb Source
*. ". +. %. . ,. 6. J. .
!a#e ;7
http:HHcis-india.or7Hinternet-7o8ernanceHblo7Hpri8ac3Hpri8ac3-media-law www.le7alser8icesindia.com http:HHlaw3ersupdate.co.in http:HHwww.the-laws.comH1nc3clopediaH https:HHindian9anoon.or7HdocH6%+5H http:HHwww.8ifindia.or7HprintH*+56 http:HHde87an.inHcriminalprocedurecode http:HHarc.7o8.inHspeechcpr.htm https:HHindconlawphil.wordpress.comHta7Hpublic-order-"H
