P L D 1969 Dacca 961 (PLP)

Mr. Kamal Hossain, the learned Advocate for the petitioner, submitted that imposition of curfew and calling in the Armed: Forces in aid of the Civil Authorities is not contemplated by the: provisions of section 144, Criminal Procedure Code. Further, the force employed, both Civil and Military, to enforce the curfew order, is not authorised under the law to shoot at persons who come out on the streets and in public places during curfew hours without any trial. It was further contended by the learned Advocate for the petitioner that the Deputy Commissioner, Dacca, in reply to the telegram sent by the petitioner, has stated in his Memo. No. 182‑RC dated 27‑1‑69 that the curfew has been imposed in some places in the District of Dacca by the respective Sub‑ Divisional Magistrates under section 144, Cr. P. C., which amounts to an admission by the Authorities that section 144, Cr. P. C. is the only section to which resort has been taken both, for imposition of curfew and calling in the Armed Forces in aid of the Civil Authorities. The learned Advocate‑General appeared and placed before us the relevant orders under which curfew has been imposed. From these orders, it is found that the Sub‑Divisional Magistrate,. Dacca Sadar (South), Dacca imposed curfew within the juris diction of Ramna, Tejgaon, Kotwali, Sutrapur, Lalbagh and: Mirpur Police Stations of Sadar (South) Sub‑Division of Dacca District on the 24th of January 1969 from 8 p.m. of that date for a period of 24 hours. Similarly, the Sub‑Divisional Magistrate, Narayanganj imposed curfew within the jurisdiction. of Narayanganj, Saddhirganj, Bandar and Fatullah Police Stations, of Narayanganj Sub‑Division of Dacca District with effect from 17.00 hours of the said date for 24 hours. Thereafter, on the 25th of January 1969, a fresh order imposing curfew was promulgated by the Sub‑Divisional Magistrate, Dacca Sadar (South), Dacca for another 24 hours beginning from 8 p.m. of Saturday, the 25th of January 1969. On the 26th of January 1969, the Additional District Magistrate, Dacca imposed curfew within the areas mentioned earlier beginning from 8 p.m. on, Sunday, the 26th of January 1969 to 8 a.m. of Tuesday, the 28th January 1969, and the 'last of the orders placed before us, was issued by the Additional District Magistrate, Dacca, imposing curfew within the aforesaid areas from 8 a.m. of Tuesday, the 28th January 1969 to 7 a.m. of Wednesday, the 29th of January 1969. From Sunday, the 26th January 1969, in all these areas, curfew was relaxed for certain periods. We quote below the two paragraphs of the order relevant for our purpose: - "Whereas it has been made to appear to me that a section of the people are likely to stage undesirable demonstration by adopting violent methods thereby creating disturbances of peace and public tranquillity with a view to dislocating normal civic life and as I am satisfied that there is reasonable apprehension of breach of peace and public tranquillity and loss of human lives and properties, now, therefore, G. M. Quadri, Additional District Magistrate, Dacca do hereby issue and promulgate this order under section 144, Cr. P. C. in the places scheduled below during the periods mentioned therein declaring curfew and prohibiting all people from coming out of their houses during those hours without lawful authority. Any one found on the public street/place without lawful authority shall be liable to punishment according to law. It is, however, to be noted that during those hours of break of curfew orders under section 144, Cr. P. C. remains in force in those areas where the same was promulgated earlier and specified in this order. This would mean that all assembly of five or more persons, meetings, processions, demonstrations, etc. and carrying of any lethal or any other weapon or any combustible substance continue to be prohibited under the law." Purport of all these orders is that the officers making the orders were satisfied that a section of the people were likely to stage undesirable demonstration by adopting violent methods thereby creating disturbance of peace and public tranquillity with a view to dislocating normal civil life and also that they were satisfied that there was reasonable apprehension of breach of peace and public tranquillity and loss of human lives and properties. The question is whether the aforementioned orders could have been passed under the law of the land. From a reading of the provisions of section 144, Criminal Procedure Code, we are satisfied that the Magistrates who have passed the afore mentioned orders were competent to impose curfew under the provisions of section 144, Criminal Procedure Code, and the said orders under section 144, Cr. P. C. are lawful. It was sought to be argued by the learned Advocate for the petitioner that facts have trot been stated in the relevant orders upon which the Magistrates felt satisfied before passing the orders. From a reading of the orders, the purport of which we have already indicated above and quoted the relevant paragraphs, it cannot be said that there were no facts present upon which the Magistrates could feel satisfied in promulgating the questioned orders. The learned Advocate for the petitioner further contended that the expression "being satisfied" is found to have been put in hand in the typed copies of the orders placed before us by the learned Advocate‑General from which he attempted to argue that the orders have been interpolated. We find it difficult to accept this contention of the learned Advocate for the petitioner. Of the five orders placed before us, in three, the expression "being satisfied" is found to have been handwritten but in the first one dated 24th of January 1969, and the last one dated 27th of January 1969, no such addition in hand is found. All the orders placed before us are signed in original by the different Magistrates who promulgated the orders. If the Authority was satisfied on the 24th of January when for the first time curfew was imposed and was also satisfied on the 27th of January, then there could be no reason for their not being satisfied in between these two dates if the situation so demanded. The next question is whether the Civil Authorities could call in aid the Armed Forces. Chapter IX of the Code of Criminal Procedure clearly authorises the Civil Authorities to call the Armed Forces in its aid in a given situation wherein the Civil Authorities feel that the Civil Forces at its command are not sufficient to meet the situation. This power of the Civ8 Authorities to call in aid the Armed Forces is inherent in it and this is in exercise of its Police powers. If any authority is needed for the purpose, we may refer to the decision of the Special Bench of Lahore High Court in the case of Muhammad Umar Khan v. The Crown (P L D 1953 Lah. 528), particularly at page 536 and the passage quoted in that judgment from 172 E R 966 at page 534 of the report. Though no specific requisition by the Civil Authorities calling in aid the Armed Forces has been placed before us, yet the fact remains that the law of the land authorises the Civil Authorities to call the Armed Forces in its aid in times of necessity. We, therefore, find no reason to hold that the calling in of the Armed Forces in aid of the Civil Authorities for maintenance of peace and public tranquillity and for saving lives of the citizens and their properties in the present instance, was without any lawful authority. The next point urged by the learned Advocate for the petitioner was that it was announced over the radio that any individual found on the streets during the curfew would be liable to be shot at sight and over the past few days numerous cases of shooting have been reported. The learned Advocate also relied on certain Press publications in this connection. Relevant provisions of our law authorise the use of force including use of fire‑arms for protecting persons and/or property against various forms of violence and the degree of force which may be lawfully used depends on the situation faced by those who are put in charge of enforcing a lawful command and suppressing lawlessness. But the force so used must be proportionate to the circumstances of the case and to the end to be obtained. In this view of the matter, we are unable to readily accept the statement of the learned Advocate‑General that there is no legal sanction for shooting of violators of curfew order without going into the facts of such cases. If there has at all been any shooting, we do not know under what circumstances force to that extent had to be used, either in the right of private defence and/or to suppress riot tumult, or in the protection of life and property while enforcing the curfew order. Adjudication of this point needs investigation of facts and taking of evidence which this Court, sitting in its Writ Jurisdiction, cannot do. We, therefore, do not find any substance in this application and the same is rejected. This matter was listed for orders today and while we were going to dictate the orders Mr. Kamal Hossain prayed for permission to file a supplementary affidavit but it was too late in the day to consider that. We have however allowed him to file the same to be kept on record. Mr. Kamal Hossain prays for a certificate under Article 58 of the Constitution on the question as to whether the Civil Authorities have inherent power to call the Armed Forces in its aid in times of necessity under the present Constitution. We have already dealt with the point and cited the authority which is to be found in Chapter IX of the Code of Criminal Procedure, and in our opinion no question of interpretation of the Constitution being involved, we do not think that a case for grant of certificate has been made out. The prayer for a certificate under Article 58 of the Constitution is therefore refused. Application rejected.