LexMADHU LIMAYE versus SUB-DIVISIONAL MAGISTRATE, MONGHYR & ORS.
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A B c D E G H 7 I ; MAOHU LIMA YE v. SUB-DIVISIONAL MAGISTRATE, MONGH\'I~ & ORS. October 28, 1970 [M. llcDAYATULLAH, C.J., J. M. SHELAL \". BHARGAVA. G. K. MITTER, C. A. VAIDIALINGAM, A. N. RAY AND I. D. DuA, JJ.] Code of Criminal Procedure (5 of 1898), ·" 144 and C/ui(Jier VIII-I.• 1io/e1tfre of Art. 19 of Constitution, On the questions : (I) Whether s. 144 and. 1 2) Ch. Vil! of the Cri- minal Procedure Code, 1898, violated Art. 19(al. (bl. (c) and (d) ot the Constitution, HELD (By Full Court): 1 (a) Article 19(2) of the Constitution. which was substituted with retrospective effect by the. Constitution (First Amendment) Act, 1951, must be held to have been in foi;&e from 26t~ January 1950. [719 BJ (b) The fiction in the amendment is to make the Constitution be rcau "ith the new clause and no other, and a law restricting the freedom i11 the imerests of public order (among others), or in the interest of the general public, must be held to be saved, not as a result of the amendment but because of these available restrictions operating from the inception of. the Constitution, that is, from January 26, 1950. Whatever may be said of a law declared unconstitutional before the First Amendment, cannot be said of a law which is being considered today after the First Amendment. [718 G-H; 719 Al (.c) rn this Court the doctrine di 'preferred position' for fundamental rights has never found ground. All existing laws are continued till this Court declar!s them to be in conllict with a fundamental right and, the burden is on the person who contends that a particular law has become mid after the coming into force of the Constitution by reason of Art. 13 (I) read with any of the guaranteed freedoms. The burden is not on the State to prove the reasonableness of the restriction. [721 C-GJ (d) The expression 'in the interest df public ordc·r' in Art. 19(2) of the Constitution is wider than 'maintenance of public order', because, a law may not have been designed to directly. maintain public order and yet it may have been enacted in the Interest of public order; and 'public order' is capable of taking within itself not only the absence of those acts. which disturb the security of the State or the absence of insurrection, riot, turbulence or crimes of violence, but also absence of certain acts, whioh dislUrb public tranquillity or are breaches of peace. It wlll not however take in anv of the acts which disturb onlv the seniority of others. [722-A-B; 124 E-HJ Ramjilal M.Qdl v. State of U.P. [1957] S.C.R. 860, Viremlm '" State of Punjab, [1958] S.C.R, 308 and Dr. Ram Manohar Lohia v. State of Bihar, [1966] 1 S.C.R. 709, followed. Superintendent, Central Prison Fategarh v. Ram Manohar Lohia [1960] 2 S.C.R. 821, referred to. · ' . ( e) The area of detention by a Magistrate under the Code of Criminal Pr<!<=edure. and the area under the laws relating to preventive detention are enttrely different. In the case of prevention detention of persons without . 712 SUPREME COURT REPORTS [1971] 2 S.C.R. trial on the subjective determination of the e;i:ecutive this Court has con1in- ed the meaning of the expression 'maintenance of public order' te graver episodes. But that consideration need not always apply becau•e local dis- turbances of the even tempo of life also affect 'public order' in the sense of a state of law abidingness vis-a-vis the safety cif others. [725 E-G; 726 A-Bl (f) The gist of action under s. 144 is the urgency of the situation and its efficacy in the likelihood of being able to prevent some harmful conse- quences. It is not an ordinary power flowing from administration but a power used in a judicial manner and which can stand 'further judicial scrutiny. As it is poss lb le to act under the section absolutely and even ex-parte the emergency must be sudden and the consequences sufficiently _grave. Therefore, the matter falls within the restri9tions which the 'consti- tution itself visualises as permissible in the interest of public order or in the interest of general public. [727 D-F; 728 A-Bl (g) Ordinarily the order would be directed against a person found .acting or likely to act in a particular way. But the effect of the oroer being in the interest of publiq order and in the interests of general public, «casions maf arise. when it is not possible to distinguish between those whose conduct must be controlled and those whose conduct is clear. A ,gen
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