In the last few months various news platforms have reported instances where the State has invoked Section 144 of Cr.P.C. While, the section has been used in common parlance by professionals and laymen, its very nature has barely been explained during news reporting. It is common belief that Section 144 restricts gathering of inviduals. However, it actually provides wide powers to wide powers to magistrates cases requiring urgent measures. The use of this provision was seen in January during the protests by JNU students, in February during the Delhi Riots and March onwards during the coronavirus pandemic.
Quite interestingly, the provision seems to have been used by the Delhi Police without any sanction of law. Most of the orders under Section 144 in Delhi are issued by the Assistant Commissioners of Police (ACP) or the Deputy Commissioners of Police (DCP). This includes the recent orders issued for the COVID-19 'lockdown'. A careful reading of the Delhi Police Act and the Cr.P.C., however, reveals that the ACP and DCP do not have powers to issue orders under Section 144 – they have to be issued either by the magistrates, or by the commissioner himself.
POLICE AND MAGISTRACY IN DELHI VS. ELSEWHERE
In most parts of the country, the police at the district-level is under the control & supervision of the District Magistrate. Delhi, however, follows a commissionerate-system, where the police is a separate body and is not under the control and supervision of a district magistrate. Instead, the Delhi Police Act has conferred certain magisterial powers on senior police officers. The Cr.P.C., however, is not drafted with the commissionerate system in mind – for instance, it refers to the Superintendent of Police and not the Deputy Commissioner of Police – and this could lead to peculiar situations.
Two sections of the DP Act require a careful reading before attempting to reconcile them with the Cr.P.C. In essence, while the Commissioner can be authorized, by special notification, to exercise powers of a district magistrate, the ACPs and DCPs can only be empowered to exercise powers of an executive magistrate. Section 20 (5) of the Delhi Police Act reads:
"Nothing in this section shall preclude the State Government from conferring, under any law for the time being in force, on a Commissioner of Police, all or any of the powers of an Executive Magistrate in relation to a metropolitan area."
Thus, the sub-section provides for conferring powers of an executive magistrate on the commissioner. Two things have to be kept in mind here: the powers to be conferred are not that of a district magistrate but an executive magistrate, and they can only be conferred upon the Commissioner, not Assistant or Deputy Commissioners.
On the other hand, Section 70 (1) reads:
"The Central Government may, by notification in the official Gazette and subject to such conditions and limitations as may be specified therein, empower-
Thus, while powers of a district magistrate can be conferred upon the commissioner of police, they cannot be conferred upon the DCPs or ACPs – to them, only powers of executive magistrates can be conferred.
It is pertinent to note that none of the provisions i.e. neither s.20(5) of CrPC nor s.70 of DP Act talk about appointment of executive magistrates. Instead, they only provide for conferring of powers of executive magistrates. Appointment as a magistrate, and being empowered to exercise certain powers of the magistrate, are different things. An analogy may be drawn: various statutes provide that an officer performing certain duties may be empowered to exercise powers of a civil court – that does not make that officer a civil judge, or his office a civil court. Similarly, being conferred with powers of an executive magistrate and being appointed as an executive magistrate, are different.
The ACPs and the DCPs are not appointed as executive magistrates. They are senior police officers who have been conferred powers of an executive magistrate by separate notifications under s.70(1)(b) of Delhi Police Act. This further receives strength from the judgment of State of Maharashtra v. Mohd. Salim Khan, where a three-judge bench of the Supreme Court observed that there is a distinction between 'appointment' as an executive magistrate and 'conferring' of powers of an executive magistrate. It also observed that the powers of the executive magistrates under CrPC are of two types – conferred (inherent powers) and conferrable (to be specially conferred).
The Bombay High Court has also similarly ruled that a person may be empowered to exercise powers of a district magistrate or an executive magistrate, but that does not make him an executive magistrate.
This leads us to the main question - who are empowered to issue directions under Section 144?
Section 144(1) reads as follows:
In cases where, in the opinion of a District Magistrate, a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order(…)
The crucial phrase here is 'specially empowered in this behalf'. The District Magistrates and the Sub-Divisional Magistrates can exercise powers under this section without being specially empowered, however, the case is different for an executive magistrate. Only those executive magistrates, are specially empowered by the government can pass an order. Considering that the ACP and DCP are conferred with the powers of an executive magistrate and are not appointed as executive magistrate, it is not possible for the government to specially empower them to utilize Section 144. This is because of the "conferred" versus "appointed" dichotomy laid down in the Mohd. Salim judgment. The special empowerment under Section 144, can only be onto an executive magistrate, and not to any other officer on whom the powers have been "conferred" like in the case of ACP and DCP.
A CASE OF ULTRA VIRES ORDERS
For the extension of prohibitory orders during the lockdown period, orders were issued by all the ACPs throughout Delhi. Keeping in mind the "conferred" versus 'appointed" dichotomy created through the Mohd. Salim judgment and the lack of authority emanating out of it, such orders are without authority. This issue was also in news earlier, when the Lieutenant Governor of Delhi had remarked that since Delhi follows a commissionerate-system, the powers of Section 144 lie with ACPs and cannot be exercised by SDMs. However, the L-G's interpretation does not have any backing of the statute.
Further, the prohibitory powers under Section 144 are kept with the magistrates – separate from the general police for a reason, and it forms an inherent part of separation of powers. The order passed by ACPs under Section 144 Cr.PC therefore reflect the bigger issue of separation of powers where the police has usurped powers of magistrates – disturbing the balance that the legislature had intended to create proper checks and balances.
COVID-19 LOCKDOWN AND BEYOND
This case of ultra vires prohibitory orders is prevalent during the COVID-19 pandemic, as the city has been shut down using these powers. The issue exists even beyond the pandemic prohibitions, however, as it appears that orders under Section 144 Cr.PC are habitually issued by the ACPs for their respective areas, and are often re-promulgated immediately upon expiry. These orders include the directions to hotels to maintain guest registers, to ATMs and banks to have CCTV cameras, etc. While such repetitive orders are anyway illegal for non-application of mind, it is interesting to note that many of the practices which now appear "regular" arise not from any order having the backing of the legislature, but from such orders passed beyond jurisdiction.
 For instance, Section 18(3) of the Right to Information Act, 2005 confers power of a civil court upon the information commissions.
 As regards information commissions, as considered above see, Namit Sharma v. Union of India, Review Petition 2309/2012 in WP(C) 210/2012 (Supreme Court). Similar decisions exist for other respective Acts.
 1991 SCC (1) 550.
 Suresh Sham Singh v. A.N. Roy, Commissioner of Police, WP (Cr.) 1333/2004.
Anuradha Bhasin vs Union Of India, W.P. (C) 1031/2019