STATE OF BIHAR versus K. K. MISRA & ORS.

Citation: [1970] 3 S.C.R. 181 · Decided: 29-10-1969 · Supreme Court of India · Bench: J.C. SHAH · Disposal: Dismissed
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Judgment (excerpt)

181 
A 
STATE OF BIHAI.. 
v. 
K. K. MISRA & ORS. 
October 29, 1969 
B 
[J. C. SHAH, J. M. SHELAT, C. A. VAIDIALINGAM, K. S. HEGDE 
AND A. N. RAY, JJ.] 
c 
D 
E 
F 
G 
H 
Cade Of Criminal Procedure, 1898 (Act 5 of 1898), ss. 144(6)-
Validity-Whether violates sub-els. (b), (c) and (d) of cl. (1) of Art. 
19 of the Constitution of India 1950. 
Sub-section ( 6) of s. 144 of the Code of Criminal Procedure provides 
th.at no order under s. 144 "shall remain in force for more than two months 
from the making thereof, unless, in cases of danger to human life, health 
or safety, or a likelihood of a riot or an affray, the State Government, 
by notification in the Official Gazette otherwise directs. The City Magis-
trate of Jamshedpur passed <>rders under s. 144(1) against the respon-
dents which were later extended by the State Government of Bihar in 
exercise of its powers under s. 144 ( 6) . In a writ petition tiled 
by the 
respondents the High Court of Patna struck down the second part of sub· 
s. (6) of s. 144 as beio.g violative of sub-els. (b), (c) and (d) of cl. 
(1) of Art. 19 of the Constitution. 
The State appealed and contended 
that the only operative orders were those made by the Magistrate and the 
Government merely extended those orders. 
Further, since the order of 
the Government got merged in the ord"ers of the Magistrate, the extended 
order was open to i'eview under sub-s. ( 4) of s. 144 and the same was 
also revisable unde• s. 435 read with s. 439 of the Code of Criminal 
Procedure. 
HELD : Per Shelat, 
Vaidialingam, Hedge and 
Ray, JJ.-(i) The 
Magistrate's order is no doubt the basic order. But after the process in 
the first five sub-sections of s. 144 is completed 
he 
becomes functus 
officio. 
The decision that the circumstances mentioned in sub-s. (6) of 
s. 144 Criminal Procedure Code continue to exist and the original order 
should be continued is that of the Government. 
It is not a case of the 
Government order getting merged in the Magistrate's order. 
Rather the 
Magistrate's order is adopted by the Government as its own order. [194 
A-C] 
The order of the Government is made in the name of the Governor 
and signed by a Secretary to the Government. 
It is published in the 
Official Gazette. It is thus clearly an executive act of the Government 
coming within Art. 166 of the Constitution. If the direction given under 
s. 144(6) is intended to merely keep alive a judicial order, the legislature 
\VOuld have entrusted that function to a judicial authority as has been 
done in the case of an order under s. 144( 1). [194 E-F) 
Section 144(4) says in clearest possible terms that the Magistrate may 
rescind or alter any order made under that section by himself or any 
magistrate subordinate to him or by a predecessor in office. 
It is not 
possible to bring within the scope of this section the order made by the 
State Government. for if it was sr intended it would have been mentioned 
in the section. [194 G] 
From a plain reading of s. 144(6) it is clear that the power conferred 
on the Government is an. independent executiv_e powe~, n~t expecte~ to 
be exercised ;udicially. It is open to be exercised arb1tranly. The direc-
182 
SUPREME COURT REPORTS 
[1970] 3 s.c.R. 
tions given in the exercise of that power need not be of a temporary 
A 
nature. The ambit of that power is very large and is uncontrolled. [195 BJ 
(ii) The fact that the Legislature is expected to keep a check on 
governmental actions does not absolve this Court's responsibility. 
The 
fundamental rights constitute a protective shield to the citizen as against 
State actions and the Court cannot de_sert its duty on the assumption that 
the other organs of the State would safeguard the fundamental right of 
the citizens. [195 C-D] 
B 
(iii) In order to be a reasonable restriction within the meaning of 
.f\.rt. 19 of the constitution the same must not be arbitrary or excessive 
and the procedure and the manner of its imposition must also be fair 
and just. 
Any restriction which is opposed to the fundamental principles 
of liberty and justice cannot be considered reasonable. 
One of the im-
pdrtant tests to find out whether a restriction is 
reasonable is 
to 
see 
whether the aggrieved party has a right of representation against the res-
C 
triction imposed or proposed to be imposed. 
Further the courts have 
to see whether it is in exce·ss of the requirement Or imposed in an arbitrary 
manner. 
Although the object of a restriction m
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