Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Local Investigation and Expert Examination in Public Nuisance Cases: Sections 158 and 159 of the BNSS, 2023
A Magistrate dealing with a public nuisance has to decide questions that no amount of argument will answer. Is the effluent from this factory injurious to the health of the neighbourhood? Is that wall likely to fall? Does this drain in fact obstruct a public way, and where does the public way run? These are questions of fact requiring inspection or expertise, and the Magistrate has neither the time to visit every site nor the training to assess every technical question.
Sections 158 and 159 of the Bharatiya Nagarik Suraksha Sanhita, 2023 supply the answer. Section 158 permits the Magistrate to direct a local investigation by a person he appoints, and to summon and examine an expert. Section 159 governs what he may tell the person appointed, how the resulting report is used, and who bears the cost. They are short provisions and they are the evidence-gathering machinery of the whole nuisance jurisdiction.
1. Where the Sections Sit
Figure 1: The public nuisance procedure, with sections 158 and 159 in place
The nuisance jurisdiction begins with a conditional order under section 152, requiring the person to remove the nuisance within a fixed time or to appear and show cause why the order should not be made absolute. Where he appears and denies the existence of a public right, section 156 requires the Magistrate to inquire into the matter and, if he finds reliable evidence in support of the denial, to stay the proceedings until the question has been decided by a competent civil court. Where no such denial is made and he appears to show cause, section 157 requires the Magistrate to take evidence as in a summons case.
Sections 158 and 159 operate at that stage. They are not a separate jurisdiction; they are the means by which the Magistrate acquires the material on which he decides whether to make the order absolute under section 160.
2. Section 158: the Two Powers
Section 158, BNSS 2023 (1) The Magistrate may, for the purposes of an inquiry under section 156 or section 157 — (a) direct a local investigation to be made by such person as he thinks fit; or (b) summon and examine an expert. |
Figure 2: The two powers compared
2.1 Local investigation
A local investigation is an inspection of the place by a person the Magistrate appoints, who then reports what he found. It answers questions of fact that can be settled by looking: whether an obstruction exists and where; whether a structure is in the condition alleged; whether a way is used by the public; what the physical layout of the site is.
The section does not prescribe who may be appointed. In practice the appointee is a revenue officer, a municipal or panchayat officer, a technical officer of the department concerned, or an advocate appointed as a commissioner. What matters is that he is independent of the parties and competent to observe and report on the matter in issue.
2.2 Examination of an expert
An expert is a person specially skilled in the subject on which his opinion is sought: an engineer on the stability of a structure, a physician or public health officer on whether a trade is injurious to health, a chemist or pollution control officer on effluent or emissions, a veterinary officer on a dangerous animal. He is summoned and examined, which means he gives evidence on oath and is subject to questioning.
⚠ The two powers are different, and are not interchangeable A local investigation produces a report of what exists at the place. It is an inspection, and the person appointed reports facts. An expert examination produces an opinion on a question requiring special skill. The expert need not have visited the place at all; he is examined on a question of science or technical judgment. A Magistrate faced with a dispute about whether a wall stands on a public way needs a local investigation. One faced with a dispute about whether the wall is likely to fall needs an expert. Many cases require both, and the section permits both. |
3. Section 159: Instructions, Evidence and Costs
Section 159, BNSS 2023 (1) Where the Magistrate directs a local investigation by any person under section 158, the Magistrate may — (a) furnish such person with such written instructions as may seem necessary for his guidance; (b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid. (2) The report of such person may be read as evidence in the case. (3) Where the Magistrate summons and examines an expert under section 158, the Magistrate may direct by whom the costs of such summoning and examination shall be paid. |
3.1 Written instructions
The power to furnish written instructions is the means by which the Magistrate controls the exercise. A person appointed to make a local investigation is not sent out at large; he is told what to look at and what to report on. Instructions that identify the points in issue produce a report the court can use; a direction merely to “inspect and report” produces a document that may or may not address the question the Magistrate has to decide.
The instructions also protect the parties. Where the points are identified in advance, both sides know what is being examined and can be present; and a report that goes beyond the instructions, or that decides a question the Magistrate reserved to himself, is open to objection.
3.2 The evidentiary status of the report
Sub-section (2) provides that the report may be read as evidence in the case. Three things follow, and they are the points on which arguments in this area turn.
- The report is evidence, not proof. It is material the Magistrate may consider, and it is not conclusive of anything. He must form his own conclusion, and he must give reasons that show he has done so.
- The person may be examined on it. The report is admissible without the maker being called, but where its contents are disputed, or where the parties wish to test how he arrived at his conclusions, he may be summoned and examined. A Magistrate who refuses to allow a disputed report to be tested is open to challenge.
- It does not displace the ordinary evidence. Section 157 requires the Magistrate to take evidence as in a summons case. The report supplements that evidence; it is not a substitute for it, and a decision resting wholly on a report without any other material is fragile.
The position of an expert is different in form and similar in substance. He gives oral evidence, so his testimony is ordinary evidence in the case; but it is opinion evidence, and the tribunal is never bound by an opinion. The Magistrate must be satisfied of the expert’s competence, must understand the reasoning by which he reached his conclusion, and must decide the question himself.
3.3 Costs
The Magistrate may declare by whom the expenses of a local investigation are to be paid, and may direct by whom the costs of summoning and examining an expert are to be paid. The provision is practical. A local investigation involves travel and time, and an expert may charge a fee; without a power to fix liability for the cost, the exercise would be impossible in a proceeding where there is no plaintiff to bear it.
4. The Nuisance Jurisdiction in Context
📖 Municipal Council, Ratlam v. Vardhichand, (1980) 4 SCC 162 Facts: Residents of a locality complained to a Magistrate under section 133 of the Code of Criminal Procedure of a public nuisance caused by open drains, the flow of effluent from a distillery and the absence of sanitation, and sought a direction to the municipality to abate it. The municipality resisted on the ground that it lacked the funds to construct drains and sanitation, and that the obligation was therefore not enforceable against it. Held: The Supreme Court upheld the Magistrate’s order. It held that the public nuisance provision is a potent weapon of social justice and that a responsible municipal council constituted for the precise purpose of preserving public health cannot escape its obligation by pleading financial inability; the statutory duty is absolute and the budget must follow the duty rather than the duty follow the budget. The Court held that where a public nuisance is established, the Magistrate has the power to give affirmative directions and to supervise compliance, and that the provision is to be used, and not left as a dead letter, where the affected public is too poor to invoke slower and costlier remedies. It described the jurisdiction as one exercised in the public interest and directed a time-bound plan of compliance. Ratio: The public nuisance jurisdiction is a summary and effective remedy in the public interest, and a public authority cannot answer a statutory duty to abate a nuisance by pleading want of funds. |
The decision explains why sections 158 and 159 matter. A jurisdiction exercised on behalf of a public that is frequently unable to fund litigation cannot depend on the parties producing technical evidence. The power to direct an investigation at the cost the Magistrate fixes, and to summon an expert, is what makes the remedy workable for people who could not afford to prove their case in a civil court.
📖 State of Madhya Pradesh v. Kedia Leather & Liquor Ltd., (2003) 7 SCC 389 Facts: Orders were passed by a Sub-divisional Magistrate under section 133 of the Code of Criminal Procedure directing industrial units to stop discharging effluent. It was contended that the enactment of the Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981, which provide their own machinery for controlling pollution, had impliedly repealed the provision so far as pollution was concerned, and that the Magistrate therefore had no jurisdiction. Held: The Supreme Court rejected the contention. It held that there is a presumption against implied repeal, and that it is displaced only where the two provisions are so inconsistent that they cannot stand together. The public nuisance provision is a measure of a summary and preventive character, operating in cases of urgency and imminent danger, whereas the pollution statutes establish a regulatory machinery operating over time; the two operate in different fields and can stand together. The Court held that the provision was not repealed, but observed that where the special machinery is in motion and is capable of dealing with the matter, the Magistrate should be slow to act in parallel. Ratio: The public nuisance jurisdiction survives the enactment of specialised regulatory statutes, because it is summary and preventive while they are regulatory. The two are not inconsistent, but the summary power is not to be exercised in parallel with a special machinery already seised of the matter. |
5. Practical Points
Question | Position |
|---|---|
At what stage may the Magistrate order a local investigation? | For the purposes of an inquiry under section 156 (where a public right is denied) or section 157 (where cause is shown and evidence is taken). Not before the conditional order, and not after the order has been made absolute |
Must the Magistrate order one? | No. The word in section 158 is “may”. But where the question in issue cannot be decided without an inspection or an opinion, a refusal to use the power, followed by a decision on inadequate material, is open to challenge |
Can the parties be present at the investigation? | The section is silent, but the principles of natural justice require it where the report is to be used against a party. The written instructions under section 159(1)(a) should provide for notice to the parties |
Is the report binding? | No. It may be read as evidence and the Magistrate must form his own conclusion. A decision that adopts a report without independent reasoning is inadequately reasoned |
Can the person who made the report be cross-examined? | He may be summoned and examined. Where the contents are disputed, the party objecting should be permitted to test the report |
Who pays? | As the Magistrate declares under section 159(1)(b) for a local investigation, and directs under section 159(3) for an expert |
What if a civil suit or a regulatory proceeding is pending? | Where a public right is denied with reliable evidence, section 156 requires the proceedings to be stayed pending a civil court decision. Where a specialised regulatory machinery is already seised of the matter, the Magistrate should be slow to act in parallel |
6. Key Takeaways
The position stated shortly 1. Section 158 permits the Magistrate, for the purposes of an inquiry under section 156 or section 157, to direct a local investigation by a person he thinks fit, or to summon and examine an expert. 2. A local investigation is an inspection producing a report of what exists at the place. An expert examination produces an opinion on a question requiring special skill. They are different powers and are not interchangeable. 3. Section 159(1)(a) permits the Magistrate to furnish written instructions to the person appointed. Instructions identifying the points in issue are what make the report usable. 4. Section 159(1)(b) permits him to declare by whom the expenses of the local investigation are to be paid; section 159(3) permits a direction as to the costs of the expert. 5. Section 159(2): the report of the person making the local investigation may be read as evidence in the case. 6. The report is evidence, not proof. The Magistrate must form his own conclusion, the maker may be summoned and examined where the contents are disputed, and the report does not displace the ordinary evidence under section 157. 7. An expert’s testimony is opinion evidence and the Magistrate is never bound by it; he must be satisfied of the expert’s competence and must understand the reasoning. 8. The nuisance jurisdiction is a potent weapon of social justice, and a public authority cannot escape a statutory duty to abate a nuisance by pleading want of funds: Ratlam Municipality. 9. The jurisdiction survives the enactment of specialised pollution statutes, because it is summary and preventive while they are regulatory; but the Magistrate should be slow to act in parallel with a special machinery already seised: Kedia Leather. 10. Where the existence of a public right is denied and there is reliable evidence in support, section 156 requires the proceedings to be stayed until a competent civil court decides. |
7. Frequently Asked Questions
What is a local investigation under section 158?
An inspection of the place in question by a person the Magistrate appoints, who reports what he finds. It is directed for the purposes of an inquiry under section 156 or section 157, and it answers questions of fact that can be settled by looking.
Who may be appointed to make a local investigation?
The section says “such person as he thinks fit” and prescribes no qualification. In practice a revenue or municipal officer, a technical officer of the department concerned, or an advocate appointed as a commissioner. What matters is independence of the parties and competence to observe and report.
Is the report of a local investigation binding on the Magistrate?
No. Section 159(2) provides only that it may be read as evidence in the case. It is material for the Magistrate to consider; he must form his own conclusion and give reasons, and the maker may be summoned and examined where the contents are disputed.
What is the difference between a local investigation and an expert examination?
A local investigation produces a report of what exists at the place; an expert examination produces an opinion on a question requiring special skill. The expert need not have visited the place. The first answers what is there, the second answers what it means.
Who pays for the investigation or the expert?
Whomever the Magistrate declares. Section 159(1)(b) permits him to declare by whom the whole or any part of the expenses of the local investigation shall be paid, and section 159(3) permits a direction as to the costs of summoning and examining an expert.
Can a Magistrate act under this chapter where a pollution authority is already dealing with the matter?
He has jurisdiction, because the public nuisance provision was not impliedly repealed by the pollution statutes and operates in a different field: State of M.P. v. Kedia Leather & Liquor Ltd. But where the special machinery is in motion and capable of dealing with the matter, he should be slow to act in parallel.
Related Topics
- Maintenance of Public Order and Tranquillity: Sections 148 to 167
- Section 163 BNSS and the Former Section 144 CrPC
- Preventive Action of the Police: Sections 168 to 172, BNSS
- Constitution of Criminal Courts: Sections 6 to 17, BNSS
- Security for Keeping the Peace and Good Behaviour: Sections 125 to 143
- Trial of Offences under the BNS and Other Laws: Sections 4 and 5