http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  401 of 2004

PETITIONER: State of Karnataka and Anr.                              

RESPONDENT: Dr. Praveen Bhai Thogadia                             

DATE OF JUDGMENT: 31/03/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 3085/2003 ARIJIT PASAYAT, J.

       Leave granted.         Though by passage of time, the basic issues seem to  have become infructuous, in view of the importance and  recurring nature of the legal issues involved, with consent  of the learned counsel for the parties, they are taken up.  For deciding the issues involved in the appeal the  background facts, which are practically undisputed, run as  follows:

       The respondent by an order of Additional District  Magistrate (in short the ’ADM’), Dakshina Kannada was  restrained from entering the said district and from  participating in any function in the district for a period  of 15 days i.e. from 10.2.2003 to 25.2.2003. The order was  dated 7.2.2003. A function was organised at Mangalore on  13.2.2003 where several religious leaders were shown as the  likely participants. On 7.2.2003, a permission for holding  the meeting was obtained by the organisers from the District  Magistrate, Mangalore. Permission was also granted by the  police authorities and the Corporation. The ADM at this  stage passed an order dated 7.2.2003 in MAG(2) CR 352/2002- 03,Dand restrained the respondent as aforesaid on the ground  that the district had become communally sensitive and there  were several communal clashes starting from 1988 resulting  in several deaths and damage to public and private  properties. It was indicated in the detailed order passed  which was under challenge before the High Court of Karnataka  that the respondent during his visit to another place on  18.12.2002, had delivered an inflammatory speech which  incited communal feelings and the communal harmony was  greatly affected. The ADM felt that a similar speech by the  respondent would result in stoking communal feelings  vitiating harmonious social and communal atmosphere. The  respondent challenged the order in a petition under Section  482 of the Code of Criminal Procedure, 1973 (in short the  ’Code’) before the High Court  taking the stand that the ADM  had no jurisdiction, because he was not an Executive  Magistrate or had not been conferred with powers of an  Executive Magistrate. The respondent also took the stand  that his speeches had nothing to do with any communal dis- harmony. They were made with reference to political issues  which have been the subject matter of debate for several  years. Only for political reasons a case was registered  against him. The petition was resisted on several grounds;  firstly it was pointed out that an alternate remedy was

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

inbuilt under Section 144 of the Code and without exhausting  that statutory remedy, the present respondent should not  have rushed to the High Court for exercise of power under  Section 482 of the Code. The stand of the present respondent  that the time available was very short and result of the so- called alternate remedy would not have yielded any fruitful  results is incorrect. Secondly, reference was made to  several instances where on account of the action of the  respondent, and his speeches and acts of organisers of the  function there were communal clashes and the District  administration had to intervene to avoid disturbances of  social tranquility and communal harmony.

The High Court by the impugned judgment held that the  ADM did not have jurisdiction to issue the order in  purported exercise of power under Section 144 of the Code.  It further held that serene communal atmosphere of the State  was an example of communal harmony and hope was expressed  that the sensible and knowledgeable people of the State  would not get swayed by any speeches touching communal  issues. Accordingly, the order passed by the ADM was  quashed.

       In support of the appeal, Mr. Sanjay R. Hegde submitted  that the High court should not have interfered with an order  which was aimed at maintaining law and order in the area and  preventing untoward incidents. The prior conduct of the  respondent in giving speeches at several places and his   other activities which inflamed a violent reaction and  resulted in communal clashes and hatred  had been properly  taken into account in passing the order under Section 144(3)  of the Code and should not have been lost sight of. In any  event, the conclusions of the High Court that the ADM had no  power to pass the order under Section 144 of the Code is  also without any legal foundation. In fact the Notifications  referred to by the High Court clearly show that the ADM was  possessed of such powers.  

       Per contra, learned counsel for the respondent  submitted that the High Court has taken the totality of the  circumstances into consideration before passing order under  challenge in this appeal and that on mere hypothetical  assumptions that the respondent would or may deliver  speeches which might destroy communal harmony, the order  should not have been passed. In any event, when the ADM did  not have the power to pass the order, the other grounds were  really of academic interest.  

Courts should not normally interfere with matters  relating to law and order which is primarily the domain of  the concerned administrative authorities.  They are by and  large the best to assess and to handle the situation  depending upon the peculiar needs and necessities, within  their special knowledge. Their decision may involve to some  extent an element of subjectivity on the basis of materials  before them. Past conduct and antecedents of a person or  group or an organisation may certainly provide sufficient  material or basis for the action contemplated on a  reasonable expectation of possible turn of events, which may  need to be avoided in public interest and maintenance of law  and order. No person, however, big he may assume or claim to   be, should be allowed irrespective of the position he may  assume or claim to hold in public life to either act in a  manner or make speeches which would destroy secularism  recognised by the Constitution of India, 1950 (in short the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

’Constitution’). Secularism is not to be confused with  communal or religious concepts of an individual or a group  of persons. It means that State should have no religion of  its own and no one could proclaim to make the State have one  such or endeavour to create a theocratic state. Persons  belonging to different religions live throughout the length  and breadth of the country. Each person whatever be his  religion must get an assurance from the State that he has  the protection of law freely to profess, practice and  propagate his religion and freedom of conscience. Otherwise,  the rule of law will become replaced by individual  perceptions of ones own presumptuous good social order.  Therefore,  whenever the concerned authorities in charge of  law and order find that a person’s speeches or actions are  likely to trigger communal antagonism and hatred resulting  in fissiparous tendencies gaining  foot hold undermining and  affecting communal harmony, prohibitory orders need  necessarily to be passed, to effectively avert such untoward  happenings.  

       Communal harmony should not be made to suffer and be  made dependent upon will of an individual or a group of  individuals, whatever be their religion be it of minority or  that of the majority. Persons belonging to different  religions must feel assured that they can live in peace with  persons belonging to other religions. While permitting  holding of a meeting organised by groups or an individual,  which is likely to disturb public peace, tranquility and  orderliness, irrespective of the name, cover and methodology  it may assume and adopt, the administration has a duty to  find out who are the speakers and participants and also take  into account previous instances and the antecedents  involving or concerning those persons. If they feel that the  presence or participation of any person in the meeting or  congregation would be objectionable, for some patent or  latent reasons as well as past track record of such  happenings in other places involving such participants  necessary prohibitory orders can be passed. Quick decisions  and swift as well as effective action necessitated in such  cases may not justify or permit the authorities to give  prior opportunity or consideration at length of the pros and  cons.  The imminent need to intervene instantly having  regard to the sensitivity and perniciously perilous  consequences it may result in, if not prevented forthwith  cannot be lost sight of .  The valuable and cherished right  of freedom of expression and speech may at times have to be  subjected to reasonable subordination of social interests,  needs and necessities to preserve the very chore of  democratic life - preservation of public order and rule of  law.  At some such grave situation at least the decision as  to the need and necessity to take prohibitory actions must  be left to the discretion of those entrusted with the duty  of maintaining law and order, and interposition of Courts -   unless a concrete case of abuse or exercise of such sweeping  powers for extraneous  considerations by the authority  concerned or that such authority was shown to act at the  behest of those in power, and interference  as a matter of  course and as though adjudicating an appeal, will defeat the  very purpose of legislation and legislative intent. It is  useful to notice at this stage the following observations of  this Court in the decision reported in Madu Limaye v. Sub  Divisional Magistrate, Monghyr and others (1970 (3) SCC  746):                 "The gist of action under Section 144 is  the urgency of the situation, its efficacy in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

the likelihood of being able to prevent some  harmful occurrences.  As it is possible to act  absolutely and even ex parte it is obvious  that the emergency must be sudden and the  consequences sufficiently grave.  Without it  the exercise of power would have no  justification.  It is not an ordinary power  flowing from administration but a power used  in a judicial manner and which can stand  further judicial scrutiny in the need for the  exercise of the power, in its efficacy and in  the extent of its application.  There is no  general proposition that an order under  Section 144, Criminal Procedure Code cannot be  passed without taking evidence: see Mst.  Jagrupa Kumari v. Chobey Narain Singh (37  Cl.L.J.95) which in our opinion is correct in  laying down this proposition.  These  fundamental facts emerge from the way the  occasions for the exercise of the power are  mentioned.  Disturbances of public  tranquillity, riots and affray lead to  subversion of public order unless they are  prevented in time.  Nuisances dangerous to  human life, health or safety have no doubt to  be abated and prevented.  We are, however, not  concerned with this part of the section and  the validity of this part need not be decided  here.  In so far as the other parts of the  section are concerned the key-note of the  power is to free society from menace of  serious disturbances of a grave character.   The section is directed against those who  attempt to prevent the exercise of legal  rights by others or imperil the public safety  and health.  If that be so the matter must  fall within the restriction which the  Constitution itself  visualizes as permissible  in the interest of public order, or in the  interest  of the general public.  We may say,  however, that annoyance must assume  sufficiently grave proportions to bring the  matter within interests of public order."    The High Court in our view should not have glossed over  these basic requirements, by saying that the people of the  locality where the meeting was to be organised were sensible  and not fickle minded to be swayed by the presence of any  person in their amidst or by his speeches. Such presumptive  and wishful approaches at times may do greater damage than  any real benefit to individual rights as also the need to  protect and preserve law and order. The Court was not acting  as an appellate authority over the decision of the official  concerned. Unless the order passed is patently illegal and  without jurisdiction or with ulterior motives and on  extraneous considerations of political victimisation of  those in power, normally interference should be the  exception and not the rule. The Court cannot in such matters  substitute its view for that of the competent authority.  

       Our country is the world’s most heterogeneous society,  with rich heritage and our Constitution is committed to high  ideas of socialism, secularism and the integrity of the  nation.  As is well known, several races have converged in  this sub-continent and they carried with them their own

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

cultures, languages, religions and customs affording  positive recognition to the noble and ideal way of life - ’Unity in Diversity’. Though these diversities created  problems, in early days, they were mostly solved on the  basis of human approaches and harmonious reconciliation of  differences, usefully and peacefully. That is how secularism  has come to be treated as a part of fundamental law, and an  unalignable segment of the basic structure of the country’s  political system.  As noted in S.R. Bommai v. Union of India  etc. (1994 (3) SCC 1) freedom of religion is granted to all  persons of India.  Therefore, from the point of view of the  State, religion, faith or belief of a particular person has  no place and given no scope for imposition on individual  citizen.  Unfortunately, of late vested interests fanning  religious fundamentalism of all kinds vying with each other  are attempting to subject the constitutional machinaries of  the State to great stress and strain with certain quaint  ideas of religious priorities, to promote their own selfish  ends, undettered  and unmindful of the disharmony it may  ultimately bring about and even undermine national  integration achieved with much difficulties and laudable  determination of those strong spirited savants of yester  years. Religion cannot be mixed with secular activities of  the State and fundamentalism of any kind cannot be permitted  to masquerade as political philosophies to the detriment of  the larger interest of society and basic requirement of a  welfare State. Religion sans spiritual values may even be  perilous and bring about chaos and anarchy all around.  It  is, therefore, imperative that if any individual or group of  persons, by their action or caustic and inflammatory speech  are bent upon sowing seed of mutual hatred, and their  proposed activities are likely to create disharmony and  disturb equilibrium, sacrificing public peace and  tranquility, strong action, and more so preventive actions  are essentially and vitally needed to be taken. Any speech  or action which would result in ostracization of communal  harmony would destroy all those high values which the  Constitution aims at. Welfare of the people is the ultimate  goal of all laws, and State action and above all the  Constitution. They have one common object, that is to  promote well being and larger interest of the society as a  whole and not of any individual or particular groups  carrying any brand names. It is inconceivable that there can  be social well being without communal harmony, love for each  other and hatred for none. The chore of religion based upon  spiritual values, which the Vedas, Upanishad and Puranas  were said to reveal to mankind seem to be -"Love others,  serve others, help ever, hurt never" and "Sarvae Jana  Sukhino Bhavantoo". Oneupship in the name of religion,  whichever it be or at whomsoever’s instance it be, would  render constitutional designs countermanded and chaos,  claiming its heavy toll on society and humanity as a whole,  may be the inevitable evil consequences, whereof.                     

       Coming to the other issues relating to the jurisdiction  of the ADM to pass the order, reference may be made to  Section 144 of the Code. Section 144 appears in Chapter X  dealing with "Maintenance of Public Order and Tranquility"  and is a part of Sub-Chapter ’C’.  The Sub-Chapter is titled  "Urgent Cases of Nuisance or Apprehended Danger" and the  Section deals with the power to issue orders in urgent cases  of nuisance or apprehended danger. The order can be passed  in terms of sub-section (1) by a District Magistrate or a  Sub-Divisional Magistrate or any other Executive Magistrate  specially empowered by the State Government in this behalf.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

The order can be passed when immediate prevention or speedy  remedy is desirable. The legislative intention to preserve  public peace and tranquility without lapse of time acting  emergently, if warranted, giving thereby paramount  importance to societal needs by even overriding temporarily  private rights keeping in view public interest, is patently  inbuilt in Section 144 of the Code.    

       The stand of the respondent before the High Court was  that the ADM who passed the order was not covered by the  categories of officials empowered to pass the order. Section  20 of the Code deals with "Executive Magistrates".  Sections 20, 21 and 144 of the Code, altogether deal with  five classes of Executive Magistrates i.e. (i) District  Magistrate (ii) Additional District Magistrate (iii) Sub- Divisional Magistrate (iv) Executive Magistrate and (v)  Special Executive Magistrate. Sub-section (1) of Section 20  provides that in every district and in every metropolitan  area, the State Government may appoint as many persons as it  thinks fit to be Executive Magistrates and shall appoint one  of them to be the District Magistrate. Sub-section (2) of  Section 20 is relevant to solve the present controversy, in  this regard. It not only enables the State Government to  appoint any Executive Magistrate to be an Additional  District Magistrate but also provides that such Magistrate  shall have such of the powers of a District Magistrate under  the Code or under any other law for the time being in force,  as may be directed by the State Government.  

       As observed by this Court in Hari Chand Aggarwal v. The  Batala Engineering Co. Ltd. and Ors. (AIR 1969 SC 483),  unless a person has been appointed under Section 20(1) of  the Code he cannot be called a District Magistrate, and  Additional District Magistrate is below the rank of District  Magistrate. The scheme of Section 20 leaves no manner of  doubt that the District Magistrate and the ADM are two  different and distinct authorities. In the above noted  decisions this Court was dealing with a notification  delegating power under Section 40 of the Defence of India  Act, 1962 issued by the Central Government empowering only  District Magistrates to exercise by virtue of the said  delegative powers under Section 29 of the said special  enactment, when it rejected the claim for its exercise  projected vis-a-vis Additional District Magistrate. But  under Section 20(2) of the Code the latter may  exercise all  or any of the powers of a District Magistrate though the two  authorities cannot be equated and the Additional District  Magistrate cannot be called the District Magistrate.  The  distinction is also clear from the fact that the object of  appointing ADM is to relieve the District Magistrate of some  of his duties. The crucial question therefore is whether the  ADM was an Executive Magistrate in terms of Section 20.  

       Under sub-section (1) of Section 20 the State  Government has the power to appoint as many persons as it  thinks fit to be the Executive Magistrates. Under sub- section (2) any Executive Magistrate can be appointed as an  Additional District Magistrate. Therefore, first thing to be  seen is whether there was any appointment of an Executive  Magistrate as Additional District Magistrate.  

       It appears from the materials placed on record that on  27.3.1974 the Government of Karnataka had appointed w.e.f.  1st April, 1974, the Special Deputy Commissioner of a  District and the Head quarters Assistant to the Deputy

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

Commissioner of a District who are appointed as Executive  Magistrates in Government Notification dated 27.3.1974 to be  Additional District Magistrate in such districts. The  Notification is numbered HD 10 PCR 74 dated 27.3.1974.  The  Notification dated 27.3.1974 (Notification No.III) was  issued vide S.O. No. 539 in exercise of powers conferred  under sub-section (2) of Section 20 and was in supersession  of Government Notification No. HD PCR 65 dated 4.5.1968 and  Notification No. HD 33 PCR 73 dated 6.12.1973. The High  Court was of the view that in the Notification dated 9th  July, 1974 there was no reference to the Notification dated  27.3.1974 by which the Executive Magistrates were vested  with power under Section 144   who are appointed under the  Notification dated 27.5.1974 and which is altogether a  different notification and not relatable to a Notification  dated 27.3.1974. The ADM who passed the order in this case  was appointed under the Notification dated 27.3.1974.  

 The High Court felt that since the Notification dated  27.5.1974 was not before it, the inevitable conclusion was  that the ADM who passed the order had no authority to pass  the same. It was for the respondent who was questioning  before the High Court the authority of the ADM to place the  materials to substantiate his claim, though nothing  precluded the authority also to have placed the relevant  proceedings, if there had been any such. Since the  respondent whose duty it was did not produce the  notification, if at all adverse inference should have been  drawn against him. From the mere non-production alone, the  conclusion should not have been arrived at that the ADM had  no power to pass the order. The confusion arose because of  certain inaccuracies in the dates. The correct notification  is dated 27.3.1974 and not 27.5.1974. On verification, it is  categorically stated that there is no notification bearing  the date 27.5.1974 and it only refers to the notification  dated 27.3.1974. Similarly there is no relevant notification  dated 9.7.1974. In reality, it is dated 6.7.1974. The copies  of correct notifications have been placed on record by  learned counsel for the appellant-State. On consideration  thereof, the inevitable conclusion which follows is that the  Additional District Magistrate had jurisdiction by virtue of  his being appointed as ADM. This position is crystal clear  from reading the notifications dated 27.3.1974 and 6.7.1974.  The conclusions to the contrary arrived at by the learned  Single Judge in the High Court cannot be sustained.

       During the course of hearing, learned counsel for the  parties submitted that the prohibitory orders should not be  allowed to be passed at the ipse dixit of the concerned  executive officials. There must be transparent guidelines  applicable. Since different fact situations warrant  different approaches, no hard and fast guidelines which can  have universal application can be laid down or envisaged.  The situation peculiar to a particular place or locality  vis-a-vis particular individual or group behaving or  expecting to behave in a particular manner at a particular  point of time may not the same in all such or other  eventualities  in another part of the country or locality or  place even in the same State. The scheme underlying the very  provisions carry sufficient inbuilt safeguards and the  avenue of remedies available under the Code itself as well  as by way of judicial review are sufficient safeguards to  control and check any unwarranted exercise or abuse in any  given case and Courts should ordinarily give utmost  importance and primacy to the view of the Competent

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

Authority, expressed objectively also, in this case without  approaching the issue, as though considering the same on an  appeal, as of routine, keeping in view the fact that orders  of the nature are more preventive in nature and not punitive  in their effect and consequences.  

For all the reasons stated above, we are unable to  approve of the orders passed by the High Court in this case  and they are set aside. The appeal is disposed of  accordingly.