Public Order and Tranquillity | Section 148 to 167 BNSS

Maintenance of Public Order and Tranquillity under the BNSS, 2023: Chapter XI, Sections 148 to 167, Unlawful Assemblies, Nuisance, Section 163 and Land Disputes

Chapter XI of the Bharatiya Nagarik Suraksha Sanhita, 2023 contains the emergency powers of the criminal law. Its twenty sections permit an unlawful assembly to be dispersed by force, a public nuisance to be removed, an order to be made forbidding any person or the public at large from doing a lawful act, and the possession of disputed land to be taken out of the hands of both claimants until a civil court decides who is entitled to it. None of these involves an offence, a charge or a conviction; all of them are directed at preventing something from happening.

The chapter is administered by Executive Magistrates, and under section 1(2) it applies of its own force even in the areas where the trial machinery of the Sanhita does not. Its most used and most contested provision is section 163, which stood as section 144 of the Code of Criminal Procedure, 1973 and is among the most frequently invoked provisions in the whole of Indian law.

Figure 1: The four parts of Chapter XI

1. Unlawful Assemblies: Sections 148 to 151

Provision	Content
Section 148	Dispersal by use of civil force. Any Executive Magistrate, or officer in charge of a police station, or in his absence any police officer not below the rank of a Sub-Inspector, may command an unlawful assembly, or an assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it is the duty of the members to disperse. If they do not, or conduct themselves so as to show a determination not to disperse, the Magistrate or officer may proceed to disperse the assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces, for that purpose, and may arrest and confine the persons forming it
Section 149	Use of armed forces. If the assembly cannot be otherwise dispersed and it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces, and may require any officer in command to disperse it and to arrest and confine such persons as the Magistrate may direct. The officer shall obey, but shall use as little force and do as little injury to person and property as may be consistent with dispersing the assembly
Section 150	Power of certain armed force officers. When the public security is manifestly endangered and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse the assembly by the armed forces and may arrest and confine persons; but he shall, if it becomes practicable to communicate with an Executive Magistrate, do so and shall thereafter obey his instructions
Section 151	Protection against prosecution. No prosecution against any person for any act purporting to be done under sections 148, 149 or 150 shall be instituted in any Criminal Court except with the sanction of the Central Government where he is an officer or member of the armed forces, and with the sanction of the State Government in any other case. The section also protects a person acting in good faith in obedience to an order he was bound to obey

⚠ Three points on the dispersal provisions

The command to disperse comes first. Force may be used only after the assembly has been commanded to disperse and has not done so, or has shown a determination not to. A dispersal by force without a prior command is outside the section.

The escalation is sequential. Civil force under section 148; the armed forces under section 149 only if the assembly cannot otherwise be dispersed and the public security requires it; and section 150 only where no Executive Magistrate can be communicated with, with a duty to communicate as soon as it becomes practicable.

The protection in section 151 is a condition, not an immunity. It requires sanction before a prosecution is instituted; it does not make the act lawful, and it does not protect an act that was not done, or purporting to be done, under the preceding sections.

2. Public Nuisances: Sections 152 to 162

2.1 The conditional order: section 152

A District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially empowered may, on receiving a police report or other information and on taking such evidence as he thinks fit, make a conditional order requiring a person to remove an obstruction or nuisance, or to desist from a trade or occupation, or to remove or regulate goods or merchandise, or to fence a tank or well, or to destroy or confine a dangerous animal, or to remove or repair a building likely to fall. The order requires him to do so within a fixed time, or to appear and show cause why the order should not be made absolute.

The occasions for a conditional order under section 152	Content
Unlawful obstruction or nuisance	To any way, river, channel or public place which is or may be lawfully used by the public
Trade or occupation, or the keeping of goods	Which is injurious to the health or physical comfort of the community, and requires that the trade or occupation be suppressed or removed or regulated
Construction, or disposal of substance	Which is likely to occasion a conflagration or explosion
A building, tent or structure, or a tree	Which is in such a condition that it is likely to fall and cause injury, and requires removal, repair or support
A tank, well or excavation	Adjacent to a way or public place, which requires fencing to prevent danger to the public
A dangerous animal	Which requires destruction, confinement or disposal

2.2 The procedure that follows

Section 153. The order is served in the manner provided for a summons; where it cannot be served, it is notified by proclamation and a copy stuck up at such place as is fittest for conveying the information.
Sections 154 and 155. The person must either perform the act within the time fixed, or appear and show cause. If he does neither, he is liable to the penalty the penal law prescribes, and the order may be made absolute.
Section 156. Where he appears and denies the existence of a public right, the Magistrate shall inquire into the matter; and if he finds reliable evidence in support of the denial, he shall stay the proceedings until the matter has been decided by a competent civil court. This is the provision by which a genuine question of right is taken out of the summary jurisdiction.
Section 157. Where he appears to show cause and no such denial is made, the Magistrate takes evidence as in a summons case; if satisfied that the order is reasonable and proper, he makes it absolute; if not, no further proceedings are taken.
Section 158. The Magistrate may direct a local investigation by a person he appoints, or summon and examine an expert. Section 159 permits him to furnish written instructions to the person appointed, and provides for the evidence and the report to be read as evidence.
Section 160. Where the order is made absolute, the Magistrate gives notice to the person, requiring him to perform the act within a fixed time; on his failure, the Magistrate may cause it to be performed and recover the costs by the sale of property or as a fine.
Section 161. Pending the inquiry, the Magistrate may issue an injunction to the person against whom the order was made, directing him to desist from doing the act pending the conclusion, and may in case of disobedience use such means as he thinks fit to obviate the danger or prevent the injury.
Section 162. A Magistrate may prohibit the repetition or continuance of a public nuisance as defined by the Bharatiya Nyaya Sanhita or any special or local law.

3. Section 163: Urgent Cases of Nuisance or Apprehended Danger

Figure 2: Section 163 in outline

Section 163 is the provision that stood as section 144 of the Code of Criminal Procedure, 1973, and the renumbering has caused some confusion because section 144 of the Sanhita is now maintenance. The two most frequently cited numbers in the old Code, 125 and 144, have exchanged places with 144 and 163, and a reference to “section 144” without naming the statute is now ambiguous.

Section 163, BNSS 2023: the essentials

(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government, there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 153, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if he considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray.

(2) An order under this section may, in cases of emergency or where the circumstances do not admit of the serving in due time of a notice upon the person against whom it is directed, be passed ex parte.

(3) An order may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof. Provided that the State Government may, if it considers it necessary so to do for preventing danger to human life, health or safety, or for preventing a riot or any affray, extend it for such further period not exceeding six months as it may specify.

(5) and (6) The Magistrate, or the State Government, may rescind or alter any such order, on its own motion or on the application of any person aggrieved.

(7) Where an application is received, the Magistrate or the State Government shall afford the applicant an early opportunity of appearing before it and showing cause against the order; and if the application is rejected wholly or in part, it shall record in writing its reasons for so doing.

3.1 The features that control the power

A written order stating the material facts. The requirement is substantive, not formal. A Magistrate who reproduces the language of the section without stating the facts on which he acted has not made an order under it, and the order cannot be tested because there is nothing to test.
Urgency. The section operates only where immediate prevention or speedy remedy is desirable. Where the matter can be dealt with under sections 152 to 162, which provide for notice and an inquiry, the urgent power is not the appropriate one.
Two months, extendable to six. The order is temporary by design. The State Government may extend it, but only for the purposes the proviso specifies and only up to six months in all.
Ex parte only in emergency. Sub-section (2) permits an ex parte order only in cases of emergency or where notice cannot be served in time. The ordinary course is notice.
A right to be heard, and reasons on rejection. Sub-section (7) requires the Magistrate to give an applicant an early opportunity of showing cause and, if he rejects the application, to record his reasons in writing. That is the provision on which a challenge to an order is usually founded.

📖 Ramlila Maidan Incident, In re, (2012) 5 SCC 1

Facts: A large gathering had assembled at the Ramlila Maidan in Delhi with police permission for a public meeting. In the early hours of the morning, while the crowd including women and children was asleep, an order under section 144 of the Code of Criminal Procedure was passed and the police cleared the ground using force, resulting in injuries and a death. The Supreme Court took suo motu cognizance.

Held: The Court held that the power under section 144 is an extraordinary power to be exercised with the greatest circumspection, and only where there is an imminent threat to public peace or safety disclosed by material before the Magistrate. It cannot be invoked to disperse a lawful and peaceful assembly which has been granted permission, merely because the authorities have had second thoughts, and it cannot be used to defeat the right to assemble peaceably guaranteed by Article 19(1)(b). The order must be founded on material, must state the material facts, and must be published and communicated so that those bound by it can know of it. A restriction must satisfy the test of reasonableness and proportionality, and the force used in enforcing an order must be the minimum necessary. The Court held that the order and its execution in that case were unsustainable and directed compensation.

Ratio: The power is extraordinary and is confined to cases of imminent threat disclosed by material. It cannot be used against a lawful and peaceful assembly, the order must be published, and the force used must be the minimum necessary.

📖 Anuradha Bhasin v. Union of India, (2020) 3 SCC 637

Facts: Following a change in the constitutional status of a region, orders under section 144 of the Code of Criminal Procedure were passed restricting movement and assembly, alongside restrictions on telecommunication. The orders were challenged on the ground that they were passed without disclosed material, were indefinite in operation, and were not published so as to permit a challenge.

Held: The Court held that an order under section 144 cannot be used to suppress the legitimate expression of opinion or grievance or the exercise of any democratic right, and must be founded on material facts disclosing a danger that the Magistrate apprehends. The power is remedial as well as preventive, but it may be exercised only where the danger is not merely likely but apprehended on material. Repetitive orders, passed one after another so as to convert a temporary power into a permanent restriction, are an abuse of the power. Every such order must be published, so that the persons affected may know of it and may challenge it before the appropriate forum; an unpublished order cannot be complied with or contested. And any restriction must satisfy the test of proportionality: the authority must adopt the least restrictive measure that will achieve the object.

Ratio: An order under the provision must be founded on disclosed material, must be published, must not be repeated so as to become permanent, and must be the least restrictive measure capable of meeting the apprehended danger.

4. Section 164 and the Prohibition of Arms

Section 164 permits the District Magistrate, Sub-divisional Magistrate or any other Executive Magistrate specially empowered, whenever he considers it necessary to do so for the preservation of the public peace or public safety or the maintenance of the public order, by public notice or by order, to prohibit in any area within his jurisdiction the carrying of arms in any procession, or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place. An order so made remains in force for three months from the date of its making, extendable by the State Government by notification for a further period not exceeding six months at a time.

5. Disputes as to Immovable Property: Sections 165 to 167

5.1 The object

Sections 165 to 167 exist to prevent a breach of the peace arising out of a dispute about land or water. The Magistrate does not decide title, and does not decide who is entitled to possession as a matter of right. He decides the narrow question who was in actual possession at the relevant date, and maintains that possession until a competent civil court determines the rights of the parties. The jurisdiction is therefore preventive and temporary, and it is displaced by the decision of a civil court.

5.2 Section 165: the procedure

The Executive Magistrate, satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within his local jurisdiction, makes an order in writing stating the grounds of his being so satisfied, and requires the parties to attend in person or by advocate and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.
He then peruses the statements, hears the parties, receives the evidence produced by them, takes such further evidence as he thinks necessary, and decides whether any and which of the parties was, at the date of the order, in possession of the subject of dispute.
A proviso permits him, if it appears that a party has been forcibly and wrongfully dispossessed within two months next before the date of the order, to treat that party as if he had been in possession at that date.
Where he decides that one party was in possession, he issues an order declaring that party to be entitled to possession until evicted in due course of law, and forbidding all disturbance of that possession until then.
If he is satisfied at any time after making the order that no dispute exists or existed, he cancels it, and all proceedings thereon are stayed.

5.3 Section 166: attachment and receiver

Where the Magistrate at any time after making the order considers the case to be one of emergency, or where he decides that none of the parties was in possession, or where he is unable to satisfy himself as to which of them was in possession, he may attach the subject of dispute until a competent court has determined the rights of the parties or the person entitled to possession. He may appoint a receiver, who has all the powers of a receiver appointed under the Code of Civil Procedure; and where a receiver is subsequently appointed by a civil court, the Magistrate shall order the receiver appointed by him to hand over possession and shall thereafter discharge him.

5.4 Section 167: right of use of land or water

Where the dispute is as to any alleged right of user of any land or water, whether the right is claimed as an easement or otherwise, the Magistrate may, if satisfied that a dispute likely to cause a breach of the peace exists, make an order prohibiting any interference with the exercise of the right. Where the right is exercisable at all times of the year, or only at particular seasons or on particular occasions, the order operates accordingly. The section applies to a right of use of a water-course, a right of way, a right of pasture and similar rights.

📖 Amresh Tiwari v. Lalta Prasad Dubey, (2000) 4 SCC 440

Facts: Proceedings under section 145 of the Code of Criminal Procedure were initiated in respect of a property, and a civil suit concerning the same property was pending between the same parties. The question was whether the proceedings under section 145 should continue alongside the civil suit, and what the Magistrate should do where a civil court is already seised of the dispute.

Held: The Supreme Court held that the object of section 145 is preventive: to prevent a breach of the peace by maintaining possession until the rights are determined. Where a civil court is already seised of the dispute and is in a position to grant relief, including interim relief, the continuance of parallel proceedings under section 145 serves no purpose and is likely to produce conflicting orders. In such a case the Magistrate should drop the proceedings, and where an attachment has been made, the property should be released or handed over as the civil court directs. The criminal jurisdiction is not to be used as a substitute for, or as a rival to, the adjudication of title and possession by the civil court.

Ratio: Proceedings under the land-dispute provisions are preventive and subordinate to the civil jurisdiction. Where a civil court is seised of the same dispute and can grant relief, the Magistrate should not proceed in parallel.

6. Key Takeaways

The position stated shortly

1. Chapter XI contains twenty sections, 148 to 167, in four parts: unlawful assemblies, public nuisances, urgent cases, and disputes as to immovable property. It is administered by Executive Magistrates and applies of its own force under section 1(2).

2. Section 148: an assembly must first be commanded to disperse; only on refusal may civil force be used. Section 149 permits the armed forces where it cannot otherwise be dispersed. Section 150 applies only where no Executive Magistrate can be communicated with. Section 151 requires sanction before any prosecution for acts done under those sections.

3. Sections 152 to 162 deal with public nuisances by a conditional order, service, an opportunity to perform or show cause, and an order made absolute, with power to order a local investigation or to examine an expert, and to grant an injunction pending inquiry.

4. Section 156 is the safety valve: where the existence of a public right is denied and there is reliable evidence in support, the Magistrate stays the proceedings until a civil court decides.

5. Section 163 is the old section 144 CrPC. Note that section 144 of the Sanhita is now maintenance, so a reference to “section 144” without naming the statute is ambiguous.

6. Section 163 requires a written order stating the material facts, urgency, and a purpose within the section. It may be ex parte only in an emergency; it lasts two months, extendable by the State Government to six months in all; and on an application to rescind, the Magistrate must give an early opportunity to show cause and record reasons if he rejects it.

7. The power is extraordinary, cannot be used against a lawful and peaceful assembly, and its exercise must be founded on material and proportionate: Ramlila Maidan.

8. Orders must be published, and repetitive orders converting a temporary power into a permanent restriction are an abuse of the power; the least restrictive measure is the one to be adopted: Anuradha Bhasin.

9. Sections 165 to 167 decide actual possession, not title, to prevent a breach of the peace; section 166 permits attachment and the appointment of a receiver in an emergency or where possession cannot be determined; section 167 protects an alleged right of user.

10. Where a civil court is already seised of the same dispute, the Magistrate should drop the land-dispute proceedings rather than run them in parallel: Amresh Tiwari.

7. Frequently Asked Questions

Which section of the BNSS replaces section 144 CrPC?

Section 163. It is headed “power to issue order in urgent cases of nuisance or apprehended danger” and reproduces section 144 of the CrPC. Section 144 of the Sanhita is now the maintenance provision that was section 125 of the CrPC, so the two best-known numbers have exchanged places.

How long does an order under section 163 remain in force?

Not more than two months from the making of it. The State Government may, if it considers it necessary to prevent danger to human life, health or safety or to prevent a riot or affray, extend it for a further period not exceeding six months in all.

Can an order under section 163 be passed without notice?

Only in cases of emergency, or where the circumstances do not admit of serving a notice in due time on the person against whom it is directed: section 163(2). The ordinary course is notice.

Can repeated orders be passed under section 163?

No. The Supreme Court held in Anuradha Bhasin that repetitive orders, passed one after another so as to convert a temporary power into a permanent restriction, are an abuse of the power. Every order must also be published so that those affected may know of it and challenge it.

Does a Magistrate decide ownership in a section 165 proceeding?

No. He decides only who was in actual possession of the subject of dispute at the date of the order, and maintains that possession until a competent civil court determines the rights. The jurisdiction is preventive and temporary.

What happens if a civil suit about the same land is pending?

The Magistrate should ordinarily drop the proceedings. Where a civil court is already seised of the dispute and can grant relief, including interim relief, parallel proceedings serve no purpose and risk conflicting orders: Amresh Tiwari v. Lalta Prasad Dubey.

Related Topics

Maintenance under the BNSS, 2023: Sections 144 to 147
Security for Keeping the Peace and Good Behaviour: Sections 125 to 143
Preventive Action of the Police: Chapter XII, BNSS
Constitution of Criminal Courts: Sections 6 to 17, BNSS
Application and Commencement of the BNSS, 2023
BNSS vs CrPC 1973: Comparative Analysis and Section Mapping