⚠ Name the statute

While both Codes are in simultaneous operation under section 531(2)(a), a bare section number is not a citation. “Section 144” means maintenance under the Sanhita and a prohibitory order under the CrPC; “section 482” means anticipatory bail under the Sanhita and the inherent power under the CrPC.

The practical rule is to write the number with the statute in every reference, in pleadings as much as in notes: “section 163 BNSS”, “section 144 CrPC”.

For a website or a set of notes, the additional step worth taking is to give the old number in brackets on first mention of a provision that has moved, because a reader coming to the subject will have the old number in mind.

Section 163(1), BNSS 2023

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 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 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 such Magistrate 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.

📖 Babulal Parate v. State of Maharashtra, AIR 1961 SC 884 (Constitution Bench)

Facts: An order under section 144 of the Code of Criminal Procedure, 1898 prohibited assemblies and processions in an area for a period, in anticipation of disturbances. The petitioner challenged the section itself as violating the freedoms of speech and of assembly under Article 19(1)(a) and (b), contending that it permitted an anticipatory restriction on a lawful activity, conferred an unguided discretion on an executive officer, and was therefore not a reasonable restriction.

Held: The Constitution Bench upheld the section. It held that the power is exercisable only where the Magistrate is satisfied that there is sufficient ground for proceeding and that immediate prevention or speedy remedy is desirable, and that those conditions are a sufficient guide; the discretion is not unguided. The power is entrusted to responsible officers of a superior rank, is temporary in operation, and is subject to rescission on application and to revision. The Court held that anticipatory action is not for that reason unreasonable: the maintenance of public order may require that a disturbance be prevented rather than punished after it has occurred, and a law that permits the authority to act in advance, on material and for a limited period, imposes a reasonable restriction. The section was held valid.

Ratio: The prohibitory power is a reasonable restriction on the Article 19 freedoms. Anticipatory action is not unreasonable where the power is confined to urgent cases, entrusted to responsible officers, temporary, and subject to rescission and to review.

📖 Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta, (1983) 4 SCC 522

Facts: Orders under section 144 of the Code of Criminal Procedure were passed prohibiting the performance of a particular ritual dance with skulls and knives in processions and public places. The petitioners contended that the ritual was an essential religious practice protected by Articles 25 and 26, and that in any event the power could not be used to prohibit a religious practice.

Held: The Court held that the power under section 144 is available to prevent a disturbance of the public tranquillity and may be exercised in relation to processions and public gatherings, but it emphasised the limits. An order must be founded on material disclosing the apprehension, and the authority must consider whether a less restrictive measure would meet the danger; a blanket prohibition where a regulation of time, place or manner would suffice is excessive. The Court also held that the duration limits are not to be circumvented by passing successive orders, and it examined whether the practice complained of was in fact an essential practice, holding on the material that it was not established to be so at the relevant time.

Ratio: The power may be exercised in relation to processions and religious gatherings, but only on material disclosing the apprehension, and only to the extent necessary. Where a regulation of time, place or manner would answer, a prohibition is excessive.

⚠ The two remedies against an order

Under the section itself. Sub-sections (5) and (6) permit the Magistrate, or the State Government, to rescind or alter the order on its own motion or on the application of any person aggrieved. Sub-section (7) requires the authority to afford the applicant an early opportunity of appearing and showing cause, and, if the application is rejected wholly or in part, to record in writing its reasons for doing so.

Outside the section. A writ petition under Article 226 lies where the order is without jurisdiction, is founded on no material, is repetitive, was not published, or is disproportionate. A revision also lies to the Sessions Judge or the High Court, since the order is that of an inferior criminal court.

The statutory remedy under sub-section (7) matters more than it appears to. The requirement to record reasons on rejection converts an executive decision into one that can be examined, and in practice the absence of reasons is the most effective ground of challenge.

The position stated shortly

1. The prohibitory power that was section 144 of the CrPC is now section 163 of the BNSS. Section 144 of the Sanhita is maintenance. The two best-known numbers have exchanged places.

2. A second pair has also exchanged places: anticipatory bail was section 438 CrPC and is now section 482 BNSS, while the inherent power that was section 482 CrPC is now section 528 BNSS.

3. Because section 531(2)(a) keeps both Codes in operation, a bare section number is not a citation. Name the statute in every reference.

4. Section 163 is carried forward without substantive change: the same authorities, threshold, form, purposes, ex parte power, classes of addressee, duration and machinery of rescission.

5. A valid order requires the right authority, urgency, a written order stating the material facts, a purpose within the section, and service under section 153.

6. The section is constitutionally valid. Anticipatory action is not unreasonable where the power is confined to urgent cases, entrusted to responsible officers, temporary, and subject to rescission and review: Babulal Parate.

7. The power may be exercised in relation to processions and public and religious gatherings, but only on material disclosing the apprehension and only to the extent necessary: Acharya Jagdishwaranand Avadhuta.

8. The four limits on use are: the order must state the material facts; it cannot be used to suppress the legitimate expression of opinion or a lawful assembly; repetitive orders converting a temporary power into a permanent restriction are an abuse; and the order must be published and must be the least restrictive measure.

9. An order lasts two months, extendable by the State Government to six months in all, and only for the purposes the proviso specifies.

10. The statutory remedy is under sub-sections (5) to (7): rescission or alteration, an early opportunity of showing cause, and reasons in writing if the application is rejected. A writ petition and a revision lie in addition.