Power to issue order in urgent cases of nuisance or apprehended danger
(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speed remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, 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.
(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.
(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.
(4) No order under this section shall remain in force for more than two months from the making thereof:
Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.
(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office.
(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).
(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.
COMMENTS
Supreme Court’s decision on old sub-section (6)– No change of substance in the old provision of this well known section has been made. The only notable change is in regard to the power of the State Government to extend the operation of the Magistrate’s order beyond two months. The Supreme Court in State of Bihar v. K.K. Misra AIR 1971 SC 1667 had struck down old sub-section (6) as invalid because it conferred arbitrary powers on the executive by reason of the facts:
| a. | that there was no provision for making any representation by the aggrieved party against the order of the State Government; | |
| b. | that there was no indication that the Government’s direction was of a temporary nature because no time limit was laid down in the sub-section; and | |
| c. | that there was no provision for appeal or revision. |
Extension of Magistrate’s orders – To meet these objections, proviso to sub-section (4) has been modified, sub-section (6) has been newly added and sub-section (7) [corresponding to old sub-section (5)] has been amended, to the effect that the State Government cannot extend the Magistrate’s order for a period of more than six months from the date of expiry of the initial order and that the State Government may, on its own motion or on the application of the aggrieved party, rescind or alter any such order extending the duration. It has also to afford opportunity to the applicant and record reasons for rejecting the application.
Other changes – The other changes of less substantial character made in this section are:
| a. | For obvious reasons powers under the section have been conferred only on the Executive Magistrates (DM, SDM). The power to empower Executive Magistrates has been retained only with the State Government and has not been given to the DM unlike in the old section. | |
| b. | Sub-section (3) of the old section had used the expression “to the public generally when frequenting or visiting a particular place”. This had given rise to uncertainties in respect of two points: |
| i. | exact meaning of “particular place”; | |
| ii. | whether persons residing in an area could be said to “frequent or visit” it. |
The High Courts of Bombay, Calcutta and Madras had taken limited or narrow view of these two concepts—See Dwarkadas Bhagubhai v. Emp. AIR 1914 Bom. 198, Abdul Majid Basunia v. Nripendra Nath Mazumdar AIR 1934 Cal. 393 and In re. Sriramamurty AIR 1931 Mad. 242.
The words quoted above in the old section have, therefore, been amplified by “or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area”.