Section 144 CRPC Or Section 163 Of BNSS Urgent Cases of Nuisance

Section 144 CRPC Corresponding to Section 163 of BNSS Urgent Cases of Nuisance

Urgent Cases of Nuisance or Apprehended Danger

Section 163 of BNSS 2023, which corresponds to Section 144 of Cr.P.C. is one of the frequently used and known sections of the previous act. It is titled ‘Power to issue order in urgent cases of nuisance or apprehended danger’. This section confers powers on some magistrates to issue an order absolute at once in urgent cases of nuisance or apprehended danger.

Even though superficially, the action and situations under it seem similar to that under Section 152, the gist of Section 163’s application lies in the fact that this section is generally applicable to the public and is absolute. While Section 152 deals with situations with specific nuisances and where the nuisance may be ongoing and may cause public harm. Section 163 deals with situations where immediate or urgent danger and threat to public safety is there. It is used to prevent violent situations before they happen.

It allows the state to act in situations where an immediate threat to public order is perceived, without waiting for an actual incident to occur. It is a very wide power that empowers the magistrates to even override the fundamental rights of citizens for protection of public property. Since this section is a legal way to suppress the fundamental rights of people in certain situations, it must be exercised very cautiously. The Supreme Court of India has given very comprehensive guidelines in various cases which we shall view later as to when and how to exercise this power. Thus this is an extraordinary power and must be exercised with due caution to the guidelines.

Now we shall see how the State empowers and exercises this power by looking at Section 163.

Who Will Issue the Order?

Section 163(1) says that

1. the District Magistrate
2. a Sub-divisional Magistrate
3. Executive Magistrate empowered by the State government for this can issue an order under Section 163 if it is necessary in their opinion.

When Will Such an Order Be Issued?

When the DM, SDM or any other specially empowered Executive Magistrate has the opinion that this order is necessary to prevent the likelihood of

1. obstruction, annoyance or injury to any person lawfully employed
2. danger to human life, health or safety
3. disturbance to public tranquility, or a riot or a affray

Nature of Order

According to 163(1), the order must be written and state the material facts of the case. It will be served to someone like summons, or be stuck at a place fittest for conveying information as given in Section 153 (Service or notification of order).

When Passed Ex-Parte?

According to Section 163(2), the order can be passed ex-parte?

1. in case of emergency
2. if it is not possible to serve the notice to the person against whom order is issued in due time

To Whom Order Is Made?

Section 163(3) says that the order under this section can be made against

1. a particular individual,
2. persons residing in a particular locality, and
3. to people visiting a particular locality.

Duration of the Order

According to Section 164(4), the maximum duration of an order passed by the DM, SDM, or Executive Magistrate is 2 months.

But it can be extended by the State government up to a total of 6 months. That is, if the State government considers that the urgent cases of nuisance remains, it can extend the 2 month period to 6 month period.

Rescinding/ Alteration of Order

According to Section 163(5), on an application by a person aggrieved by the order, or on his own, the Magistrate may rescind or alter the order. But this power is available to the Magistrates only for a maximum of 2 months for which they can order.

On an order under 163 which has been extended to 6 months or less by the State government, the state government will decide the alteration or decide to rescind the order.

According to Section 163(6), similarly on an application of person aggrieved, or on its own, the State government can rescind or alter the order.

If the Magistrate or State government receives an application from a person to rescind or alter the order, they shall provide that person an opportunity to be heard, either himself or by an advocate. And if his application is partly or wholly rejected, reasons why it was done shall be recorded in writing.

Now we look at Section 163(1) again and see the extent of powers that can be exercised in the order.

It provides that a Magistrate may by a written order, direct any person to abstain from a certain act or to take certain order with respect to property. The only qualification attached to this order is that it should be done to prevent urgent nuisances. There has been no limit defined as to what the orders might say. And as one has seen it in application, it can constitute from simple curfew for a certain amount of time to stoppage of internet services and general movement, which can be said to be an infringement of fundamental rights. This definitely raised a question on its constitutional validity, which was addressed in the case of

Madhu Limaye v Sub-divisional Magistrate, Monghyr (1970)

In this case, the application and the extent of powers under Section 163, then Section 144 of CrPC, was challenged on the basis that it would infringe Article 19(a) - (d).

The SC closely examined the restrictions provided in Article 19(2), (3), (4) and (5) and the meaning of ‘public order’ and ‘public tranquility’ as well as the difference between ‘in the interest of’ and ‘for the maintenance of’ and concluded that the section was constitutional.

According to the Court, the gist of Section 163 lies in the urgency of the situation and its efficacy in the likelihood of being able to prevent some serious consequences. The power to act ex-parte and to make absolute orders is for the same purpose to be used in an emergency with grave consequences.

The scope of public tranquility is wider than public order and to maintain it, the powers needed must also be extensive, even extending to restraining individual rights to do something which is legal otherwise.

Apart from that, law provides various modes of a person who might come under the area of a general order but is not doing any activity to jeopardise the public order. The option to get the order vacated against himself is always available to the person on application. The options of revision and the petition of writ are also available. Apart from that the order is a restraint that would be temporary depending on the urgency and danger present in the situation and not on restraining the rights of an individual.

Thus even though the powers provided under it are wide, there exists conditions for the situation where it is to be applied and the innocent person always has remedies at his disposal to get a reprieve from the restraints on his rights.

Gulam Abbas v State of UP (1981)

In this case, Section 144 of Cr.P.C. was applied in a case where a dispute as to property arose. The question that came before the court regarding Section 163, then Section 144 of Cr.P.C. was whether an order made under the section is judicial, quasi-judicial or executive and subject to writ under Article 32.

The court said that the keynote of the power under Section 163, then Section 144 of Cr.PC. is to free the society from menace of serious disturbances of grave character and this section is directed against those who attempt to prevent the exercise of legal rights by others or imperil public health and safety. In Cr.P.C., 1971 and BNSS 2023, functions of magistrates have been separated and this order is an executive order passed in performance of executive functions which is amenable to writ jurisdiction under Article 32 of the Constitution on the ground that it violates or infringes a fundamental right. It being an order passed by a magistrate makes it subject to revision under Section 438 of BNSS 2023, corresponding to Section 397 of Cr.P.C. 1971.

Anuradha Bhasin v. UOI (2020)

This case arose out of a writ petition to the SC under Article 32 regarding the imposition of orders under Section 163 of BNSS (corresponding to Section 144 of Cr.P.C. 1971) in Jammu and Kashmir which led to restrictions on communication and movement of common people for a significant amount of time.

The Supreme Court gave guidelines for imposition of orders under Section 163 so as to balance the need of the State to maintain public order and tranquility and the freedom granted by Article 19. They are :-

1. The power here is remedial as well as preventive, exercisable when there is either present danger or apprehension of danger and the nature of ‘danger’ should be in the nature of an emergency.
2. This power cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights.
3. An order passed under Section 163 should state the material facts behind the order to enable judicial review of the same.
4. The Magistrate is duty bound to balance rights and restrictions based on the principles of proportionality and thereafter apply the least intrusive measure.
5. Repetitive orders under Section 163 would be seen as an abuse of power and in its application, rights of people have to be considered, not the ease of administration.

Disputes As to Immovable Property

This part extends from Section 164 to Section 167 of the Sanhita, corresponding to Section 145-148 of the Criminal Procedure Code 1971. These sections concern disputes as to immovable property under two categories. They are :-

1. Dispute concerning possession likely to cause breach of peace, and
2. Dispute concerning right to use land or water.

The Sanhita through these sections aims to provide a speedy remedy and prevent breach of peace and compel the disputants to go for other legal means. This is a quick determination of rights based on the aim to maintain public peace and does not go into determination of legal ownership or final rights arising from each claim.

Section 164: Procedure When Dispute Concerning Land or Water Is Likely to Cause Breach of Peace

This section corresponds to Section 145 of Cr.P.C. 1971.  This section is designed to prevent breach of peace and deprivation of possession by persons who take law into their own hands.

When Preliminary Order Given

When the Magistrate receives information either from a police report or from some parties that a dispute relating to possession of land or water is likely to cause breach of peace within his jurisdiction, he will make an order to the parties concerned to :-

1. attend his court either in person or through an advocate on a specified date and time; and
2. put written statements of their respective claims with respect to actual possession of the disputed land or water.

Nature of Order

This order shall be made only after the Magistrate is satisfied that there are grounds for a dispute. It will be a written order with the grounds for satisfaction being mentioned in it. It will be served like service of summons and a copy of the order shall be stuck conspicuously near the place of the dispute.

Inquiry

Section 164(4) talks about the nature of inquiry conducted by the Magistrate. The Magistrate shall only determine which party had possession on the date he made the order under Section 164(1). But the proviso provides an exception to this. If it appears to the Magistrate on the information received that a party was forcibly dispossessed of the property within 2 months of either the receipt of information or order under Section 164(1), he will be regarded to be in possession on the date of the order.

Eg - If there is information received in March that a property presently possessed by B is under dispute between A and B. But the information also indicates that A was forcibly dispossessed by B in February, then the Magistrate shall consider the property to be in possession of A.

For this inquiry, the Magistrate shall examine the statements and evidence put up by both parties. He will inquire into the history of possession and the likelihood of the dispute causing breach of peace. He will not examine the merits of the claims in this case. His purpose is to only determine who will have the right to possess the subject of the dispute and this possession will be determined from the date of the initial order.

During this inquiry, if a party dies, all parties claiming to be a representative of a deceased party shall be added to the inquiry. Apart from that the magistrate can, on the application of either party, call any witness to attend or to produce a document or a thing. If the subject contains crops or items subject to speedy decay, the Magistrate can make an order for the disposal or custody of such property or its sale-proceeds.

Order for Possession

If during the inquiry, if the parties show that no such dispute existed, then the Magistrate shall cancel his preliminary order under Section 164(1).

If it appears to the Magistrate after the inquiry that the proviso to Section 164(4) is applicable, i.e. a party has been forcibly dispossessed within 2 months of the information or order regarding the dispute, he will restore the possession to the party forcibly and wrongfully dispossessed.

Similarly, if it appears to him that the other party should be in possession, he will make a final order declaring such party to be in possession.

Whichever party is declared to be in possession by the Magistrate, shall be entitled to possession until evicted therefrom in due course of law. This possession shall not be disturbed until such eviction happens.

But what happens when an emergency arises before the Magistrate can reach a conclusion from his inquiry under Section 164. Section 165 talks about such a procedure. Section 164 and 165 have been considered by the Courts to comprise one scheme and 165 must be read in light of 164.

Section 165: Power to Attach Subject of Dispute and to Appoint Receiver

When Can Such Order Be Given

If some emergency with respect to peace arises, or the Magistrate cannot determine who was in possession at the date of the order, or he determines that none of the parties were in possession of the subject of dispute at the day of the order, the Magistrate can attach the property.

When Removed

This attachment shall last until a competent Court has determined the dispute.

This attachment can also be withdrawn by the Magistrate if he feels that the threat of breach of peace is not there anymore.

Procedure

The Magistrate can also appoint a receiver if there is no receiver appointed by the civil court for taking care of the property. When the civil court appoints its own receiver, the Magistrate shall order the handing over of possession of the disputed property and discharge the receiver appointed by him.

Important Case Laws for Section 164 and 165

Ram Sumer Puri Mahant v. State of U.P. (1985)

In this case, the question arose before the Supreme Court over the role of Magistrate under Section 145 of the Cr.PC. (now Section 164 of BNSS 2023) and the scope of his powers.

The SC said that the role of this section arises in addressing disputes that concern possession that could disturb public peace. When there already is a suit concerning possession pending in the civil court, criminal proceedings under Section 145 of Cr.P.C., now Section 164 of BNSS 2023 , would not be justified except in exceptional circumstances.

Magistrate’s role is to make an order regarding possession as a mechanism for resolving disputes that could breach public peace, not as a determination of rights.

Jhummamal v State of M.P. (1988)

The Supreme Court said that the order under Section 145 of Cr.P.C. (now Section 164 of BNSS 2023) deals with the factum of possession and that too only on the day that the dispute started. It does not determine the title or ownership.

This determination is subject to the final determination by civil court, which can definitely be different from the findings of the Magistrate and the unsuccessful party can prove better title by appeal in the court, not from the order of the Magistrate.

While Section 164 and 165 deal with disputes relating to possession of land or water, Section 166 concerns itself with rights of the user of land or water. A lot of the procedure for it is similar to that of disputes concerning property, as we shall see now.

Section 166: Dispute concerning right of use of land or water

This section corresponds to Section 147 of Cr.P.C. and has been brought in to the Sanhita without any change.

It concerns disputes relating to the right of use of land or water and the Magistrate is empowered to  make an order prohibiting any interference with exercise of such right.

The order made and the nature of the inquiry are similar to that in Section 164. On the receipt of information, either from a police report or otherwise, the Magistrate can make an order requiring the attendance and statements regarding the dispute from the parties, either by themselves or through advocates.

The Magistrate can, after finding that interference was done by a party to the right of use, order the party to stop interfering with the right of use of land or water if:-

1. If the right of use exists throughout the year, then the party should have used it within 3 months of the receipt of information
2. If the right of use is seasonal or occasional, then the party should have used it on the last season or the last occasion of use.

For eg, if there is a dispute between A on whose land a canal goes through and B, who uses the canal through a channel to water his fields. If there is a dispute between A and B, the Magistrate will look at whether B has been using that water from the channel within 3 months of the dispute.

According to Section 166(4), if the Magistrate in his proceedings finds out that the dispute is not with respect to right of use, but of possession, or vice-versa, he will proceed after recording the reasons as if the proceedings are of Section 164(1) or vice versa.

Section 167: Local inquiry

Section 167, corresponding to Section 148 of Cr.P.C. 1971, says that the District Magistrate or SDM may order a local inquiry by an Executive Magistrate if necessary under Section 164, 165 or 166. The appointed magistrate shall be given written instructions for his guidance and his report shall be read as evidence in the case.

The District Magistrate or SDM appointing him will also direct any or both the parties to the proceedings to bear the expenses incurred by the magistrate inquiring and also what proportion of expenses to be borne by which party.

Chapter XII: Preventive Action of the Police

In Criminal Procedure Code 1971, this was present in Chapter XI, from Section 149-153. In BNSS 2023, this is present in Chapter XII, from Chapter 168-172. ‘Section 153: Inspection of weights and measures’ in CrPC has been deleted and ‘Section 172: Persons bound to conform to lawful directions of the police’ is a new section that has been added in BNSS 2023.

This chapter concerns preventive powers of the police which are of an executive nature. It includes the principles of the duties of the police as well as  the rights of a detained person.

Section169 and 170 are important sections with respect to preliminary examinations. Apart from that, a superficial reading of other sections is enough for judiciary examinations.

Section 168: Police to prevent cognizable offences corresponds to Section 149 of CrPC and says that any police officer can obstruct for the purpose of preventing  and must to the best of his ability, prevent the commision of any cognizable offence.

Section 169: Information of design to commit cognizable offences, corresponding to Section 150 of Cr.P.C., puts a duty on the police officer on a police officer who comes to know of any information or design of a cognizable crime. The officer shall inform his superior officer, and to any other officer who can prevent that crime or take cognizance of that crime.

Section 170: Arrest to prevent commission of a cognizable offence, corresponding to Section 151 of Cr.P.C., says that the officer who receives such information of a design to commit a cognizable offence also has the power to arrest the person so designing without orders from a Magistrate or without warrant if there is no other way to prevent the offence from happening. Also, such person shall be detained for a maximum period of 24 hours unless his further detention is authorised by law, either through a Magistrate or through another provision of law.

Section 171: Prevention of injury to public property, corresponding to Section 152 of Cr.P.C., gives a police officer the authority to prevent any  injury committed in his view to any movable or immovable public property, public landmark, buoy or other mark used for navigation.

Section 172: Persons bound to obey the lawful directions of the police is a new section brought about in BNSS with the aim to compel individuals to comply with lawful instructions of the police. Section 172(1) says that all persons are bound to follow the lawful instructions of a police officer given to fulfil his duty. On disobedience by refusal, resistance, ignoring or disregarding of such an instruction, the police officer is empowered to detain that person and take him before a Magistrate. But if the person detained is detained with respect to a petty case, he will be discharged as soon as possible within 24 hours.

 

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