The Delhi High Court on Tuesday asked the Delhi Police to explain how an order curtailing the Fundamental Rights of citizens could be issued by an executive magistrate.

A Division Bench of Chief Justice Darmar Murugesan and Justice V. K. Jain called for the reply from the City Police on a petition challenging the promulgation of prohibitory orders under Section 144 of the Criminal Procedure Code at India Gate, in the lawns along the Central Vista, on Rajpath and at Connaught Place during the protests against the Delhi gang-rape a fortnight ago.

The Bench asked the police to reply to the Court’s query within two weeks and posted the petition on February 6 for further hearing.

The Bench also issued a notice to the Union Government.

The Bench had on January 2 reserved order on the maintainability of the petition.

The petitioner, advocate Anand K Mishra, submitted that prohibitory orders had not only denied the protesters their Fundamental Right to assemble peacefully and express themselves but also restricted the movement of people in general without any reasonable grounds.

He submitted that during the prohibitory orders in force in these areas, even lawyers were not allowed to reach the Patiala House courts near the India Gate to attend to the cases of their clients listed for hearing and the family members of accused failed to stand sureties for grant of bail as they were also debarred from going there.

He further said that the prohibitory orders under Section 144 could be promulgated only if it was found that issuance of such orders was likely to prevent, or tended to prevent obstruction, annoyance or injury to any person lawfully employed, or danger to human life or a disturbance to the public tranquillity or a riot or an affray.

However, in the present case where people were peacefully protesting, no such likelihood could be reasonably ascertained. Moreover, the impugned orders nowhere stated the circumstances which had forced the Delhi Police to resort to the promulgation of Section 144. Surprisingly, the police had taken into account obstructions to traffic as one of the primary grounds to impose the prohibitory orders which were patently illegal, the petitioner stated.

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