7.5 Preventive Jurisdiction: Security Proceedings, Public Nuisance, Section 163 Orders & Disputes as to Immovable Property

7.5 Preventive Jurisdiction: Security Proceedings, Public Nuisance, Section 163 Orders & Disputes as to Immovable Property

The BNSS is not only a code of investigation and trial. Chapters IX to XI confer a preventive jurisdiction designed to stop offences before they occur and to defuse disputes that threaten public peace. In Maharashtra these powers are exercised mainly by Executive Magistrates — the District Magistrate, Sub-divisional Magistrates and Tahsildars invested under Section 14 BNSS — and not by the Judicial Magistrate. A Civil Judge (Junior Division) and JMFC must know exactly where the line runs, because a party who has lost before an Executive Magistrate very often turns up in the civil court next.

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Chapter IX: Security for Keeping the Peace and for Good Behaviour (Sections 125-143 BNSS)

• Procedure: the Magistrate makes an order under Section 130 setting out the substance of the information, the amount of the bond, its term and the number of sureties. If the person is present in court the order is read over to him; otherwise a summons or warrant issues under Section 132, accompanied by a copy of the order under Section 133.
• Section 135 requires an inquiry into the truth of the information, conducted as nearly as practicable in the manner of a summons-case trial.
• Section 141 provides for imprisonment in default of furnishing security; Section 142 permits release when the security becomes unnecessary; and Section 143 allows security for the unexpired period of a bond.
• Constitutional caution: these are preventive, not punitive, powers, and the Supreme Court has repeatedly insisted that they be exercised on material and after a real inquiry, since a bond order restricts liberty without a conviction.

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Chapter X: Public Nuisances (Sections 152-162 BNSS)

Section 152 BNSS (formerly Section 133 CrPC) empowers a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate to make a conditional order requiring removal of an unlawful obstruction or nuisance from a public place, regulation of a trade or occupation injurious to health, prevention of danger from a building or tree, fencing of a tank or excavation, or confinement of a dangerous animal.

• The order is conditional: the person must either comply or show cause against it (Sections 153-155).
• If he appears and denies the existence of a public right, Section 156 requires the Magistrate to stay proceedings until the matter is decided by a competent Civil Court. This is the statutory hinge between the preventive jurisdiction and the civil court, and it is a favourite examination point.
• Section 161 allows an injunction pending inquiry in cases of imminent danger, and Section 162 allows the Magistrate to prohibit repetition or continuance of a public nuisance.

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Section 163 BNSS: Urgent Orders to Prevent Nuisance or Apprehended Danger

The successor to the much-litigated Section 144 CrPC. A District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate may, by a written order stating the material facts, direct a person to abstain from a certain act or to take certain order with property in his possession, where there is sufficient ground for proceeding and immediate prevention or speedy remedy is desirable.

• The order may be made ex parte in cases of emergency.
• Duration: it remains in force for two months from the making of the order. The State Government may, if it considers it necessary for preventing danger to human life, health or safety or a riot or affray, extend it, but the total period cannot exceed six months.
• The Magistrate may rescind or alter the order on his own motion or on application by an aggrieved person, who must be given an early opportunity of being heard.
• Do not confuse Section 163 BNSS with Section 144 BNSS. Section 144 BNSS is the maintenance provision (formerly Section 125 CrPC) covered in Section 7.4. The renumbering means the familiar phrase "Section 144 has been imposed" now refers, in law, to Section 163.

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Sections 164-167 BNSS: Disputes as to Immovable Property

This is the provision a Civil Judge encounters most often, because parallel civil proceedings are common.

Section 164 (formerly Section 145 CrPC) — Procedure Where a Dispute Concerning Land or Water Is Likely to Cause a Breach of the Peace

1. Preliminary order: on being satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, the Executive Magistrate makes an order in writing stating the grounds and requiring the parties to attend and put in written statements of their claims as respects the fact of actual possession.
2. What the Magistrate decides: only who was in actual possession on the date of the preliminary order. He has no jurisdiction to decide title; that belongs exclusively to the Civil Court.
3. The two-month look-back rule: if a party has been forcibly and wrongfully dispossessed within two months before the date of the preliminary order, the Magistrate may treat that party as if he had been in possession on that date. This proviso is the single most tested feature of the section.
4. Outcome: the Magistrate declares the party found in possession entitled to retain it until evicted in due course of law, and forbids disturbance of possession until then.

Sections 165-167

• Section 165 (CrPC 146): where the Magistrate is of opinion that none of the parties was in possession, or he is unable to decide which of them was, he may attach the subject of dispute and appoint a receiver until a competent court determines the rights of the parties.
• Section 166 (CrPC 147): a corresponding procedure where the dispute concerns a right of use of land or water, such as an easement or a right of way.
• Section 167 (CrPC 148): the Magistrate may depute a subordinate Magistrate to make a local inquiry and report.

[!IMPORTANT] The rule a Civil Judge must apply. An order under Section 164 BNSS is of a temporary and police character. It binds the parties only until the Civil Court decides the question of title or right to possession, and it can neither create nor destroy a civil right. Once a competent Civil Court passes a decree, the criminal order stands superseded, and the executing court will not decline to execute the decree merely because an Executive Magistrate had earlier found possession the other way.

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Preventive Action of the Police (Sections 168-172 BNSS)

Section 172 BNSS is genuinely new and controversial: it obliges all persons to conform to the lawful directions of a police officer, permitting detention or removal of a person resisting or refusing, followed by production before a Magistrate or release when the situation is normalised. A candidate should be able to identify it as an addition rather than a renumbering.