Maintaining Public Order and Preventing Nuisance: A Critical Study of Chapter XI of BNSS

Abstract

Preserving public order and preventing nuisance has been an essential part of any civilized and democratic society. The introduction of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) marks a significant step taken by India to modernize the entire criminal procedural framework by replacing the British era legacy of Criminal Procedure Code, 1973 (CrPC). This research paper focuses on Chapter XI of the BNSS, which deals particularly with the provisions, both reactive and preventive, for the maintenance of public order and public nuisance. The papers set the stage for why the BNSS needed to be introduced by demonstrating the limitations of the CrPC when accounting for the contemporary socio-legal concerns. It goes ahead to discuss how the evolution of Chapter XI came about with its legislative pedigree and how the BNSS modifies or rephrases provisions which were earlier part of Chapter X of CrPC. Each section of Chapter XI was critically scrutinized with those case laws, judicial interpretations, and illustrations from practice indicating the meaning and scope that law is likely to have. Moreover, it provides a comparative outlook with international legal systems, the UK and the US in particular, and state-level practices in India, which will assist in making a wider context for understanding preventive legal measures. It critically engages with issues of discretionary misuse, constitutional rights, and procedural safeguards.

Finally, Recommendations for better implementation were made by the research for the law to recognize public order alongside civil liberties. The study, therefore, aims at contributing to the whole debate on how to balance the power of the state with an individual’s freedom in an increasingly changing democratic society.

Keywords: BNSS, Public Order, Nuisance, Preventive Law, Chapter XI, CrPC, Legal Reform, Constitutional Rights, Executive Magistrate, Police Powers

Why There Was a Need to Introduce BNSS in Place of CrPC

The criminal justice system of India has long relied ajain upon the Code of Criminal Procedure of 1973 (CrPC), which is an evolving law from the earlier Code of Criminal Procedure of 1898, enacted during British Rule. This was developed mainly for the British Crown’s preferences and was a legacy from imperialism used primarily to keep the native population, not to give justice in a democratic spirit. Though it was modified after independence, the CrPC still had features that proved unfit for a newly formed free republic.

While fundamentally intended to provide a procedural framework for investigation, inquiry, trial, and punishment of offenses, the entire outline bore the marks of colonial mores that it imposed: authority over liberty, control over compassion, and uniformity against diversity. At this point, India was transformed into a constitutional democracy-insomuch that old procedural devices were showing their inadequacy in meeting rising demands for justice, citizens’ rights, and technology advancement. The Bharatiya Nagarik Suraksha Sanhita, 2023, is a completely opposite document, born with a very much forward-looking and reformative vision for speedy, transparent, citizen-centric, and technology-driven criminal justice processes. The BNSS operates with such inspiration for reform while fully recognizing the criticality of decolonizing the justice system-making it compatible with other constitutional values of individual liberty, dignity, and fairness.

And here comes the explanation in the Statement of Objects and Reasons attached to the BNSS Bill: This CrPC, in its current form, becomes obsolete and irrelevant for assimilating the changes that technology, society, and law bring about as they rush with speed toward and beyond the past decades. This is the intent of this Bill-to enact a comprehensive procedural law to provide public order, justice, and fairness by adopting modern methodologies.

Objectives of Change

Based on these variables, the change could be summarized as moving from CrPC to BNSS based on the following points:

1. Decolonization: Eradication of all colonial influences and language, the best example being CrPC.
2. Simplification: Making procedures simpler since they are also older and poor-citizen friendly.
3. Speedy justice: Specifying time limits and using technology such as e-filing FIRs, video conferencing, etc., to combat delays and reduce backlogs.
4. Citizen-Centered: A concern for the rights of victims, protection of women, children, and the elderly.
5. Digital integration: Provisions for electronic evidence along with digital policing instruments and e-communication of law processes.

The Real Test of Change

Such a drastic overhauling requirement emanated sidelined from-

• This Huge Case of Pending Court Cases: Chronicler of pendency-more than 3.5 crore cases in various courts across India, thus even the outdated procedures prove ineffective.[2]
• Using Technology Obsolesce: CrPC never provided for any mode to accept digital evidence or register online complaints or e-processes.
• Shortcomings in Victim Rights: The victim was not given statutory rights in international terms.
• Too technical terms and Latin phrases that rendered it inaccessible to a layman.

Key Contributors and Consultative Process

The Parliamentary Standing Committee on Home Affairs, various Law Commissions, and legal experts were instrumental in framing the BNSS. Notably, the 21st Law Commission and Justice Malimath Committee on Reforms of Criminal Justice System (2003) had recommended major procedural changes.

Union Home Minister Amit Shah, while introducing the BNSS, stated: “The purpose of criminal law is not only punishment, but also justice. BNSS reflects the Indian ethos, values, and constitutional morality in letter and spirit[1].”

Justice V.S. Malimath noted: “A victim-centric criminal justice system is the need of the hour. The procedural law must shift focus from the colonial model to citizen welfare[2].”

Prominent jurist Justice B.N. Srikrishna also commented: “The real reform in criminal law is not just in defining new crimes, but in ensuring that the process is not itself a punishment[3].”

Evolution of Chapter XI of BNSS

The long-felt essential requirement to bring the procedural laws of India from the colonial era into the 21st century is setting the stage for change in Chapter XI of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), devoted to maintaining public order and tranquility. Most of these provisions can be traced back to the Criminal Procedure Code of 1898, enacted at the time when the British ruled India, and adopted into the post-independence law as the Code of Criminal Procedure, 1973 (CrPC). The public nuisance and unlawful assembly and private property-based disputes under Chapter X of the CrPC fully served their purposes during their times, but now tend to become increasingly out-dated in terms of language, legal philosophy, and procedural safeguards. The importance of the statement made by Justice D.Y. Chandrachud in a seminar in 2021 is echoed by such an observation: “Colonial laws were drafted with the mindset of ruling over a population, not serving them. That imbalance persists in parts of our criminal procedure.”[4] Primarily it was seen by CrPC as a matter of control and not of protection, thereby conferring huge and often ungoverned powers to magistrates and policemen. It has resulted in a misuse and overreach that has, on several occasions, contravened the fundamental rights of citizens under Articles 19 and 21 of the Constitution. Hon’ble Supreme Court, in the landmark case of Madhu Limaye v. Sub-Divisional Magistrate (AIR 1971 SC 2486), warned against arbitrary use of Section 144 CrPC, adding that “grave circumstances” should justify such use of power and not for general administrative purposes. Same holds true in Gulam Abbas v. State of U.P. (AIR 1981 SC 2198) where the Court underscored that the preventive powers exercised had to conform to constitutional requirements and not infringe on individual freedoms.

To address these flaws, the Government of India has set up numerous expert committees, the Justice V.S. Malimath Committee on Criminal Justice Reforms (2003) being among them, which recommended radical changes in the preventive legislation to be rights-based and less susceptible to misuse. These powers had to be exercised with accountability by magistrates, as the Committee stated, ‘Magisterial powers for maintaining public order have to be under accountability. Misuse is rampant; reforms must include better review mechanisms.’ These issues have been raised and repeated by many legal scholars and practitioners over the years. Professor Faizan Mustafa[5] had pointed out, “Where earlier it was all about silencing through force, the BNSS today preaches peace through procedure.”

With its shift towards a more citizen-centric legal framework, Chapter XI of the BNSS marks a departure from colonial-era governance. The chapter introduces qualitative changes to retain the skeletal structure of the CrPC: simplified language, digitally adaptive procedures like electronic summons and video conferencing, time-bound directives, and mandatory recording of maser reasons for all magisterial orders. What one would endeavor to see is a preventive legal system which is more transparent, accountable, and efficient. The Acharya Jagdishwaranand v. Commissioner of Police[6] judgment captured the dilemma of public order vis-a-vis religious freedom, making it clear that a subtle approach like that which BNSS seeks to bring in was imperative in a diversified democracy like India. In fact, quoting Justice B.N. Srikrishna on the new criminal codes: “Preventive justice is important but it can never infringe on personal liberty guaranteed by the Constitution. BNSS is heading in that direction[7].” Now, the new provision should make magistrates act more judiciously with proof and on a time-sensitive basis. More importantly, this digital integration also ensures action is traceable and available to parties against whom it is used, thus lessening opportunities for abuse of procedure.

In fact, the New Chapter XI of the BNSS is not only a revised set of procedural instruments but a reinvention of the state as an organization in itself for public order-through transparency, due process, and respect for rights. It shows how India is getting rid of the colonial legacies of law toward a justice system founded and based on constitutional morality and administrative fairness.

Interpretation of Section 148 to 167 of BNSS

Section 148 – Dispersal of Assembly by Use of Civil Force[8]

Imagine a town square enlivened by hawkers, school children, and the smattering and medley of general activities indicative of daily living. When afternoons begin to slowly build up, that stillness would be interrupted. A peaceful gathering to demonstrate against some local policy suddenly turns testy: chants are getting louder, tempers are flaring, and a section of the gathering is vandalizing shops in their vicinity. The situation is close to getting out of hand. Such scenes are what Section 148 of the Bharatiya Nagarik Suraksha Sanhita, 2023, conceives. The law gives such authority to the Executive Magistrate or the officer-in-charge of the police station. If it is decided that the assembly is unlawful, or if it is even suspected that it might disturb public peace, then the officer can proclaim that the people disperse. If the crowd remains adamant, then it is the duty of the officer under the law to use civil force to restore order. The laws of civil force have then imputed duties, responsibilities, and standards of proportionality to that discretion.

In Karam Singh v. Hardayal Singh[9], the Supreme Court emphasized the use of force after providing due notice. The judgment, therefore, emphasized the need for restraint and parity of public officials in the exercise of power. This would ensure that no individual liberties are treading public order.

Of the many things that are pretty about Section 148, one would be the dual role that it has had to play: one is holding the expression of the democracy at a distance while at the same time it serves as an escape valve for times when that expression is likely to turn into more and more heated agitation. It does not invite the suppression of dissent but neutralizes disorder when peaceful protest becomes a fringe threat to public safety. With the provision, the state continually is kept in remembering that not by force alone is law and order kept but rather judiciously and with humaneness when that force has to be exercised.

Section 149. Use of Armed forces to disperse assembly[10]

Imagine a riot has broke out on a busy street in the market. The fight started escalating, shops went on fire, stones were thrown, and the police were outnumbered. Authorities put their best warnings, civil forces acted, yet nothing could quiet down this mob. This stage is where all civil means have been exhausted, and public safety had been hanging by a thread before Section 149 of the BNSS comes at hand. It empowers the District Magistrate; or any Executive Magistrate authorized by him-for calling in the armed forces to disperse an unlawful assembly. It is not the first tool for response; it is never the first tool when civil machinery falls short. The very language of the statute reflects this cautious stance: two conditions must be fulfilled prior to the use of armed forces-the assembly cannot otherwise be dispersed; and dispersing it is necessary for public security.

The Supreme Court, in its historic Madhu Limaye v. Sub-Divisional Magistrate[11], delineated that even though state possesses prerogative to take preventive measures for realizing public order, it must exercise that power very sparingly. The action of using armed forces has to be both legal and proportional to the definitely perceived threat. An illustration of the Section 149 can definitely be shown in a kind of event-an upsurge massive protest in which the violence comes close to an operative sensitive border. Usually, such situations are there that the local police forces prove unable to control the crowd, having imminent fear toward the national security infrastructure. Here, the District Magistrate weighing the situation may give a green signal for the use of the armed forces. Therefore Section 149 is not really an exercise of domination-it is about restoration. Therefore, as much as it represents the State’s obligation to secure public peace, due regard should also be given to individual rights. Such a provision serves as a deterrent, at once reminding that exceptional powers are to be exercised with exceptional caution, and every step taken under this section should be one that puts life, order, and constitutional values first above all.

Section 150- Power of certain armed force officers to disperse assembly[12].

Imagine now a situation where a religious procession, in a remote district that had been simmering with communal tensions, came to an explosion then erupted into violence, very quickly spiraling out of control. There are usually not enough local policemen; or more likely, they find themselves cut off altogether, without communications. There is no time to wait for the Executive Magistrate; it too can mean delay-lives lost and large-scale destruction. In this regard, activation takes place in Section 150 of BNSS as a crucial safety device. This section empowers a commissioned or gazetted officer of the armed forces to act in immediate emergency conditions manifestly endangering public security for all practical purposes; because there is no communication with a Magistrate, brigades the dispersal of an unlawful assembly and arrests those individuals to be delivered over to the civil police by using the military command at his disposal, the officer. What makes this provision very interesting is the fact that it comes with conditions-it is not free for use as an open-ended license to use military might but a contingent emergency power, justified only in the most extreme of immediate, ungovernable situations. An apt illustration would be a situation during a natural disaster relief convoy to be held up by looters making an angry mob. If civil authority cannot be contacted, a military officer on the scene can act under Section 150 to restore order and ensure public safety. In State of Bihar v. P.P. Sharma[13], it was, however, direct on this section that the Supreme Court reiterated, any powers exercised by public officers affecting the liberty shall also be subject to principles of necessity, proportionality and legality. This very logical reasoning dovetails with Section 150, which protects the misuse of only in very exceptional cases and on occasions when civil governance is temporarily paralyzed.

Thus, Section 150 performs the function like in emergency action forcibly on a runaway train towards disaster-it cannot be yanked at will, but when yanked, it must serve enormously to protect and stabilize, not intimidate. Here, the law will trust trained officers in critical adjudication, expecting discipline, accountability, and loyalty to the rule of law.

Section 151- Protection against prosecution for acts done under sections 148, 149 and 150[14].—

Power must come with accountability, but not paralyze quick action when there is an emergency. Section 151 of the Bharatiya Nagarik Suraksha Sanhita, 2023 brings in the legal protection that is given to public officials, especially police and armed forces who were forced to act by the urgencies of sections 148, 149 and 150 to manage assemblies and maintain public order. This provision hence creates a shield of law for officers executing statutory duties by providing that any criminal prosecution against them is not possible unless prior sanction is obtained either from the Central Government for armed forces or the State Government in cases of others like police or Magistrates. The two reasons for protection are that officers shall not be motivated to fear vexatious litigation against officers acting in good faith, and the other is to keep the morale and decisiveness of those frontline officers in volatile public disturbances.

Picture a situation wherein an Executive Magistrate intervened under Section 149 to disperse a rioting assembly, assisted by the armed forces. Doing so, during the operation, injuries follow, and some aggrieved persons seek to initiate criminal proceedings against the officers involved. If not for Section 151, any action taken under such circumstances, irrespective of legality, would open every officer involved to endless streams of harassment within legal proceedings. With Section 151 in place, a filter is thus created by placing the government scrutiny before commencement of any prosecution.

The Supreme Court in Naga People’s Movement of Human Rights v. Union of India[15], has emphasized protection which is to be granted to armed forces; however, such an honor has to keep in check the boundaries of impunity. The Court found that sanction is not a shield from justice but serves as a shield from the procedural lookout for actual misuse pointing toward the proper use of force.

Consequently, Section 151 does not bar accountability; it merely postpones it until its verification by the competent authority. It promotes constitutional governance by excluding politically motivated or malicious prosecutions; it also preserves the image of public service by ensuring that officers execute their functions under the law without fear of retaliation.

B.—Public nuisances

Section 152- Conditional order for removal of nuisance[16].

Section 152 of the BNSS bestows the power upon Executive Magistrates to issue conditional orders aimed at preventing or removing any kind of nuisance which threatens public health, safety, or comfort. The right vested in individuals to carry on their trades and to use their property must take second place when it infringes upon the welfare of the larger community. This section, however, speaks of the ancient principle of salus populi suprema lex-the welfare of the people is the supreme law. Let us suppose the picture of a shopkeeper who starts keeping dangerous chemicals in a congested market; the shopkeeper fails to take appropriate precautions and, as a result, the residents begin to complain of the unpleasant smell of fumes with a visible hazard of fire entailing from it. On a police report, the Executive Magistrate can pass a conditional order under this section directing the shopkeeper to either remove the chemicals within a prescribed timeframe or to attend and show cause why the order should not be enforced. Thus, this order is conditional since it allows compliance by the person, and otherwise it can be contested via a hearing under subsequent sections. A typical example can be Municipal Council, Ratlam v. Vardhichand[17], where the Supreme Court held that pubic authorities are required to act against public nuisance. Although the case was about the inaction of the local body concerned, Justice Krishna Iyer’s words ring true to the spirit of Section 152: “Public nuisance is a crime against the community.” The court set down that when the nuisance endangered public health or comfort, local and executive authorities had a duty to act expeditiously.

Therefore, this section takes pre-emptive measures and works within administrative hands to avert problems even before they arise into threats. It explains individual rights and public safety with a balance of administrative discretion, law, evidence, and also urgency. And the stress is not on punishment of the person, but all on preventive justice- to make sure the problems are addressed early enough to avert endangerment of public order.

Section 153- Service or notification of order[18].—

In the year 2023, Section 153 of the BNSS explains the obligation of due process and natural justice in respect of conditional orders made under Section 152. While Section 152 may focus on swift actions against nuisances or dangers to public welfare, Section 153 feeds the need to inform the person affected by the orders-who is either present personally or through summons procedure- about what the order was all about. Thus, an essential principle is upheld: no one shall suffer the consequences of an order unless such order has been effectively communicated to them in a fair and reasonable manner. Think of a person running illegal fireworks from a property in a congested residential alley. With the police report, the Magistrate renders a conditional order under Section 152 requiring cessation of operations within 48 hours. If present in court, Section 153 requires that the order be read out to him or at least its substance explained so as to ensure comprehension; if absent, however, the law does not stop; the order must be served in the same manner as a summons, that is, personal delivery or any other acceptable mode, such as affixation or registered post, preventing them from flouting or being made oblivious of the order in public interest.

In State of M.P. v. Shobharam[19], it was laid down by the Supreme Court that while taking regulatory or preventive measures cognizable under laws of criminal procedure in criminal law, the concern of public nuisance removal, it is to be emphasized that notice is to be served properly upon the concerned parties, who shall be afforded an opportunity to present his case. While this falls under the old CrPC regime, the rationale applies under the BNSS as well.

Section 153 thus, in plain words, ensures that a person is not only informed about the order but also able to comply with or contest it. This is an instance of procedural fairness, which attempts to balance the expediency of administrative action and the constitutional rights of the individual. It states that the governance under law must not push aside the principles of notice and fair hearing, even in cases where the public good is at stake.

Section 154- Person to whom order is addressed to obey or show cause[20].

Section 154 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, is consistent with the thread of natural justice, in that it gives a person against whom a conditional order under Section 152 Against has been made, a choice of either complying with the order as directed or to appear and present his case. This provision incorporates the fundamental tenet of administrative fairnessthat no person may suffer adversely without having had an opportunity to be heard. Thus, the section does not prescribe a generic solution but enables an individual either to conform with the order or to contest it before the Magistrate. Picture a street vendor whose small stall momentarily causes blockage of a busy lane in the marketplace. The Magistrate, having received complaints, on hearing the party passes a conditional order under Section 152 directing the vendor to vacate the spot. Now, under Section 154, the vendor has two options. He can either remove the stall within the time specified or he can appear before the Magistrate and explain, perhaps, that he has permission from the municipal authority or that the obstruction is due to nearby encroachments and not solely his stall. The section places the responsibility of the individual response, thus ensuring that the administrative action would have protective measures as well as timely and duly executed. Order thus is not mechanically enforced, but judiciously does the same with due regard given to reasoned justifications, if any.

In Hari Khemu Gawali v. The Deputy Commissioner of Police[21], the importance of giving people a fair hearing was emphasized as regards their interests which were jeopardized by administrative actions against them. Though this case was in the context of preventive detention, the broader principles of hearing and opportunity to be heard give credence to the procedural balance that Section 154 seeks to strike.

In other words, Section 154 provides a flexible procedural safeguard in an essential respect also to a just legal system: public interest would not be compromised unjustly with safeguards of individual liberty.

Section 155- Penalty for failure to comply with section 154[22].-

Section 155 of the BNSS serves as a compulsion measure subsequent to the opportunity granted by Section 154. The issuance of a conditional order, coupled with any of the following qualifications: non-compliance or failure to appear before the Magistrate to show cause, entails two consequences: liability to punishment and absolute order. This facet moves within the direction of solidifying the enforceability of administrative directions which address a public nuisance, obstruction, or dangerous conditions as these become punishable non-compliance-scenarios and will eliminate delay caused due to deliberate avoidance of procedural provisions.  One can visualize a situation where a man has been accordingly ordered under Section 152 to pull down a dangerous wall hanging over the entrance of a school. He does not comply nor goes to court. The Magistrate could declare the original order as final under Section 155, which means that there will not be further hearings; at the same time, this person has become liable for punishment under BNSS laws, signifying that not appearing in court is not detrimental to one’s legal liability. It embodies a precept of accountability in respect of proceedings in law, or, as it would be termed more prosaically, under such circumstances, when a person is invited to contest or comply and yet does not move in such direction, such tacit or passive interpretation by the law would include definition for consent or indifference, so that his action here could be finalized.

In Bhaskar Industrial Development Ltd. v. State of Maharashtra[23], the court clearly articulated the principle regarding the fact that if a notice was served at the person about illegal construction and the concerned person did not respond or appear afterward, the authorities have every right to take that reason into account in case of demolition proceeding. This, though not very directly under BNSS, has also been the spirit of the judgements concerning conditional orders or non-compliance penalties – ever so steadily insisting on a proper balance among upholding administrative efficiency and doing justice. Section 155 is thus a punitive procedural stipulation in making sure that public interest litigation is not delayed through non-cooperation. It embodies BNSS orientation towards fast-tracking outcomes and commercial decisiveness in matters relating to public safety and order.

Section 156- Procedure where existence of public right is denied[24].—

BNSS 156 is a busy section of moments in preventive litigation-it contemplates the very challenge to the existence of the public right upon which a Magistrate’s order is based. There are some interesting complexities about publicways, rivers, and places, seemingly public but under private claim to some individuals. It upholds the principles of judging on facts and has imparted the Magistrate responsibility to first go through the inquiry and then direct action instead of acting on any order.

For example, a landowner builds a gate on the narrow lane that ever connects a village with the community pond. This creates an obstruction and a Magistrate will invoke Section 152 to remove it. The landowner adjudicates such through claiming the narrow lane as ancestral property and declares it is not a public path. Under Section 156, the Magistrate will now have to stay the proceedings and conduct an inquiry to determine if, indeed, public right of way exists before taking any further steps.

It is in the State of Bihar v. Kameshwar Singh,[25] that this principle of procedural fairness echoes, which the Supreme Court recorded in zcuting that since public access rights overlap private property rights, good inquiries need to be made to legitimate state actions. The case was actually related to land reform but the rationale behind it has, by and large, underpinned the spirit of safeguarding that this section 156 represents.

In essence, thus putting the section against two weights-the public spaces from which unlawful obstruction takes place and private rights against an act of administrative overreaching. 156 takes the Magistrate to inquire into the legitimacy of the public claim before finalizing his order, thus guarding against rushed measures and reinforcing rule of law as a function of informed decision-making rather than assumption or authority.

Section 157- Procedure where person against whom order is made under section 152 appears to show cause[26].—  

Section 157 of the BNSS mainly operates like a judicial filtering since it does determine the credibility of the denial of any individual before it could be acted as the one possessing any public right. After a preliminary inquiry into Section 156, if the person against such order produces credible and competent evidence to show that the public right alleged over the way, river, or place does not exist, the Magistrate would necessarily have to stay his proceedings and postpone the matter to a competent civil court. In this process, such disputes relating to ownership and access-rather complicated and, in many cases, everlasting disputes-are not settled, hastily, within the limited scope of summary Magistrate proceedings. However, if the denial is not substantiated or is unsupported, the magistrate may enforce the original order now given the immortalizing sheen of procedural legitimacy under Section 155.

Imagine all this taking place-the farmer directed to remove fencing he has built across what villagers claim is a common pathway. The farmer comes to see that, including that pathway, all these records, a registered land deed, and mutation records, show that the whole area is part of surveyed and fenced private property. If these were found reliable, the proceedings must automatically be stopped by the magistrate since they are to go for the civil court because he, as a magistrate, could judge ownership or title. The reason for it is based on jurisdictional propriety-a well-accepted principle in Krishna Ram Mahale v. Shobha Venkat Rao[27], where the Court has reiterated that matters concerning the contest amongst private rights to property should be so adjudicated in the appropriate forum, more especially when it intertwines with constitutional rights and property rights.

Section 157 is thus characterised by the lines of the Magistrate’s power so that the summary public nuisance proceedings do not impinge upon areas where deeper civil litigation might be needed. It goes beyond that into the whole broader aim of the BNSS: faster but fairer-haste would not trump justice, and legal actions taken would be duly constrained and procedurally justified.

Section 158- Power of Magistrate to direct local investigation and examination of an expert[28].—

Section 158 simplifies the procedure for Magistrates when it becomes apparent that the person against whom an order has been made does not contest the public nature of that appertaining property or has not been able to produce credible evidence contradicting it. The provision thus removes all remaining procedural hurdles and enables the Magistrate to proceed toward the finalization of the order and enforcement under Section 155. This at once coordinates with the principle of administrative efficiency and public welfare demanding prompt removal of the obstruction once the existence of the public right is acknowledged or left unproven.

Suppose the setting is some rural district where a small kiosk has been built by an individual on an extremely busy public footpath. Acting under Section 152, the Magistrate asks the said person to remove it. This person appears before the court and admits that the footpath belongs to the Panchayat, failing to bring any document or reason against it. Under Section 158, absent effective denial of public right, the Magistrate could proceed immediately with the order in the absolute sense and set it for enforcement.

In Sundaram v. State of Tamil Nadu[29], the learned Judge of the Madras High Court said that a necessary corollary to the enforcement of orders with respect to the public right is to do it without undue delay, particularly when the person concerned has not been able to justify the encroachment or show cause against the order. In other cases where public pathways or natural water channels are involved, the Court felt that procedural leniency will adversely affect wider public interests.

Section 158, therefore, saves the day for the procedural obstruction arising out of Section 158 creates an unambiguous line of demarcation: if you concede that a public right exists—or cannot dislodge that assumption with reasonable argument—then the action that you are compelled to take becomes mandatory upon the Magistrate. The provision seems to encapsulate the BNSS imagining of trimming unessential litigation in favor of public safety, accessibility, and upkeep, while also being fair and also with due observance towards procedural rights.

Section 159- Power of Magistrate to furnish written instructions, etc[30].—

This segment battles the issuance of a preliminary order under Section 152 alongside its final enforcement or modification. When the respondent appears before the Magistrate, the very next and important step is to record evidence and assess it in view of the case. Such a situation does not permit the procedure to run contra legem; rather, it gives the person concerned a fair opportunity of being heard in his own defense- either through oral statements, documents, or witness testimony. Hence, this principle reinforces the principle of audi alteram partem-another side must be heard. For example, there is a case of a ramp being made from concrete by a resident protruding into a public road, on which complaints were made by locals. Thereupon, the Magistrate propounded a preliminary order under Section 152. The next thing is that upon receipt of this order, the person appears and contends that the ramp was authorized by municipal authority for use by sick family members. Therefore, the Magistrate is now obliged, under Section 159, to hold an inquiry into any evidence that may support this claim, such as building permits or photographs medical evidence. Thereafter, any order of the Magistrate could not really afford to be fair without such scrutiny.

The court in Aga Mohd. Jaffer v. State of West Bengal has reinforced the duty to hear and take evidence by stating that there must be a reasonable opportunity for persons to be heard even in cases of public nuisance of an urgent nature before any orders that may affect their liberty or property rights are made. In other words, it stressed that public nuisance should be abated, but not at the cost of a fair procedure.

That is how the table is turned on the procedure before the Magistrate by Section 159. It lays the foundation that truth emerges by means of a serious inquiry into the matter, not merely on ex-parte casual assumption. That gives the aggrieved parties a fair chance to present their case before the Magistrate, based on a deep understanding of public interest and individual rights.

Section 160- Procedure on order being made absolute and consequences of disobedience[31].—

Section 160 of the BNSS appears to restate the spirit of procedural fairness by giving to an individual against whom a preventive order is made the chance to “show cause,” that is, to explain or justify his conduct before the final action is taken. The provision is a statutory protection from the arbitrary exercise of power: it ensures that the concerned person has a proper opportunity to defend his case, produce evidence and challenge the necessity or legality of the order. It is no empty formality: in fact, it gives a substantive right for the maintenance of balance between public order and individual liberty. For example, a smaller version of this would suffice: if a shopkeeper puts up display racks a little beyond his boundary, thereby allegedly encroaching upon a public footpath, then on a Section 152 order requiring the removal of such obstruction when he appears before the Magistrate, the shopkeeper would be entitled to show cause by arguing, saying that the racks are not, in fact, an obstruction to movement, or that such arrangements are quite common and have been sanctioned by the municipal body. The Magistrate would therefore have to take in some evidence like statements from municipal authorities or locals and only then decide on the fate of the order as to whether to uphold it, modify it or withdraw it.

The case stressed the procedural right of the citizen upon which this case is built: Mohd. Haroon v. State of Uttar Pradesh[32], wherein the Allahabad High Court stated that “the right to show cause is not an empty ritual; it is an essential check on administrative authority, ensuring that the individual’s version is heard before coercive action is taken.” The court has stressed that the principles of natural justice must apply even to preventive action which interferes with livelihood or property. Therefore, Section 160 seeks to elevate preventive powers in Chapter XI of the BNSS, rendering them speedy and more importantly, just. It is the procedural bedrock to ensure that orders made in the name of public order never go on to become instruments of injustice or abuse. Thus, it fits most appropriately into the modern perspective of the BNSS as making a criminal procedure transparent, accountable, and participatory.

Section 161- Injunction pending inquiry[33].—

Section 161 of the BNSS specifies that a Magistrate is empowered to convert the conditional or preliminary order issued under Section 152 into a final or absolute order after satisfying himself with sufficient cause shown by the person against it. Now, the crux of this is Magisterial satisfaction after judicial positioning, for there should be satisfaction, not just whether public interest is served; but whether the person has really rebutted the claims against him. In the end, there being nothing much for which the Magistrate, having heard and taken evidence, found the order indeed justified and with no ground to reverse or qualify it, the law enables the Magistrate to confirm it and, thus puts it into effect. Suppose a resident has created an unauthorised platform hanging out at the edge of a walkway in a public park where people cannot use it because it is an obstruction. Then the residents come together and give a complaint to a Magistrate, who in turn would issue a notice under Section 152. They would give a chance to the residents to reply as provided under Sections 159 and 160. The evidence would also include municipal maps and photographs, upon which the Magistrate would then conclude that indeed there is public space obstructed by this platform, and the resident has not proved any legal rights to keep it. The Magistrate would then be given the power under Section 161 to make the initial order absolute and direct the authorities to remove the obstruction. That is how so important this articulation is stressed in Municipal Council, Ratlam v. Vardhichand[34], because the Apex Court held that a Magistrate should act immediately when public rights are concerned, particularly if they are related to health, hygiene, or environmental degradation. Though that case was under Section 133 CrPC, which is analogous to Section 152 BNSS, the Court asserted that delay in administration could not be invoked against the people. A Magistrate, on satisfaction, should enforce orders without hesitation to maintain the collective rights of citizens.

Section 161 thus becomes churning ground on such a matter-it will ensure that the process does not get caught in indecision and when fairness has been extended through hearing and evidence, then the Magistrate can proceed to act with confidence. It also signals the initiation of effective compliance, which is definitely important in realizing fully the functionality of preventive law.

Section 162- Magistrate may prohibit repetition or Continuance of public nuisance[35].—

The summons and the appearance of a person before a Magistrate to challenge an order passed under Section 152 must necessarily be approached by a Magistrate in accordance with Section 162 of the BNSS, the procedural roadmap provided therein. What is important is for the Magistrate to “take evidence in the matter as in a summons-case.” The inquiry is supposed to follow the rules of a trial in a summons-case as laid down in Chapter XX of the BNSS–thus not arbitrary, but governed by a standard of legal fairness, such as examining witnesses, allowing cross-examination, and recording the statements in a well-structured and legally admissible format. One obvious example would be a situation where the city government complains that the resident stores flammable materials near a school, creating a risk to public safety. The Magistrate issues a notice under section 152. The resident then appears in court claiming that the materials are completely safe, and indeed kept with official permissions. In this case, Section 162 obliges the Magistrate to conduct proceedings according to a summons-case-summon municipal officers, check storage licenses, and allow the accused to cross-examine witnesses or adduce alternative evidence. This format will ensure that a decision is made based on facts judiciously weighed and not purely administrative presumption. The procedure for holding the case similar to the summons case was emphasized in State of Kerala v. Sankaran Unni[36], where it was ruled by the Supreme Court that all preventive proceedings under public order laws need to be held within structured procedures when they concern with individual rights. The Court further stressed that not observing such procedures can invalidate the entire order, for instance, when the order adopts a coercive approach like removal of structures or seizure of property.

Thus, Section 162 is a very important procedural safeguard transforming a summary administrative order into a mini-trial-centered approach that is pro-evidence and cross-examination intensive. It creates a more open and credible preventive legal regime to ensure that justice is not only done but appears to be done.

Section 163-Power to issue order in urgent cases of nuisance or apprehended danger[37].—

In BNSS Section 163, it is specified that if any party upon whom an order has been placed conditionally under Section 152 fails to appear before the Magistrate or refuses compliance with the summons, the matter will be absolute. This means that it is confirmed and executable as such. The very reason behind this is because the law must step in where somebody had the opportunity to act before it. Any deliberate hindrances or evasions of legal processes that would stall efficient execution of these preventive orders concerning public safety and order are intended to stop. Let us take a case where a factory is said to be discharging poisonous fumes into a densely populated locality. The magistrate issued an order under Section 152 to the owner of the factory to abate the public nuisance upon receipt of credible information. A date was fixed for appearance to explain the matter but the factory owner failed to appear without justification. By virtue of Section 163, the Magistrate may very well make the original order absolute and direct the relevant authorities to halt any operations including sealing the premises until compliance. This theory finds justification from Municipal Corporation of Delhi v. Sushila Devi[38], which states that the absence of the aggrieved party does not stay the enforcement of any order that is made lawful in regard to public safety. Preventive jurisdiction cannot be paralyzed by procedural delays or by non-responses of the willful sort. Hence, after giving adequate notice, it is in the public interest for the Magistrate to implement the order rather than subject the other party to an indefinite wait period.

Consequently, it clearly states that under Section 163, the system cannot be held at ransom by non-compliance or tactical silence because it guarantees that due process and timely enforcement are values that the law upholds, especially where public nuisances or safety are concerned. This assures some certainty in procedure for preventive issue: either you engage with the system, or you suffer the consequences.

Section 164 – Consequences of His Failing to Do So[39]

To an extent, Section 164 is an energizing force in the enforcement of conditional orders or absolute orders made under Section 152. When an order is served on a person and the person is allowed a reasonable chance to contest it, the person, however, chooses to not comply. It is this civil liability that enables the Magistrate to order competent agencies or public authorities themselves to obey the order — removal of the obstacle, closure of operations threatening, or demolition of illegal construction — and, most importantly, to recover the costs of any action taken from the defaulter. This is the way that guarantees accountability in the special case, so that the Magistrate’s conscience does not suffer because of violation. Consider, for us, a very simple example: a shopkeeper who erects an illegal extension from his shop over a busy market road, creating a public nuisance. The Magistrate issues a conditional order under Section 152, hears the shopkeeper under Sections 159 through 162, and makes it absolute. The shopkeeper, however, does not comply. Under Section 164, the Magistrate can order demolition against the municipal corporation for this illegal structure, then send a recovery notice to the shopkeeper, recovering the costs related to this operation from him. This would prevent paralysis of the public authority through inaction or intentional defiance.

In C. Rangaswami v. The State of Tamil Nadu[40], the High Court of Madras endorsed this principle by declaring that once the fair procedure was followed and a direction was made absolute, the Magistrate was empowered to execute that order through the state machinery. The Court also opined that the public interest cannot be sacrificed on the altar of individual apathy or obstinacy, and recovery of the costs serves as a valid deterrent against making a mockery of lawful orders.

Thus, Section 164 ensures the imposition of orders pursuant to which a grave penalty comes to be attached to ignoring public duties as well as lawful orders. It is the measure that assures the functioning and integrity of B.J. against any charge directed at it.

Section 165 – Injunction Pending Inquiry[41]

With the insertion of Section 165, a most urgent safeguard has been integrated into the Chapter XI machinery for the handling of public nuisances under the BNSS, whereby an interim injunction is ordered by the Magistrate pending inquiry. It only contemplates situations where emergency action must be taken to prevent actual or potential danger from any act or neglect of the circumstances, or in which the full procedure of law cannot wait for its operation. In cases of public safety, health, or gross environmental degradation, the demands of massive public harm mean that even the slightest retardation would unleash disaster. Hence, the temporary and enforceable relief under Section 165 can be taken as an effective judicial firewall against emergencies. Consider the following- An excavator is working illegally on a construction site next to a residential building, thereby posing the risk of causing the structure to collapse. One of the residents approaches the Magistrate, who takes cognizance of the matter under Section 152. The Magistrate gives an order under Section 165 to halt the construction firm immediately pending inquiry, as the act poses a danger to human life. This injunctive order preserves the status quo until justice catches up with damages. The underlying principle of prevention was upheld by the Supreme Court in Mohd. Haroon v. Union of India[42], where it stated, “The administrative and judicial authorities must act expeditiously and effectively in order to ward off any threats to public order or safety.” This Court did not declare Section 165 directly, but its reasoning constitutes the case in point; for in the instances of public injury, postponed justice is not merely injustice, but hazard. The courts have repeatedly recognized interim orders as a mechanism to restore the balance of society while awaiting a final determination.

In this wise, therefore, Section 165 is a reflection of the judicial foresight required to address pressing public nuisances. It stands by the maxim “salus populi suprema lex”- the welfare of the people is the supreme law- and so equips the Magistrate to intervene without hesitation, acting not only as a judge but also as a custodian of public safety.

Section 166 – Magistrate May Prohibit Repetition or Continuance of Public Nuisance[43]

Section 166 of the BNSS gives permission to the Magistrate to intervene proactively to put an end to or to at least prevent the continuation of a public nuisance. This section is just preventive and prohibitive in the machinery of public order. It empowers the Magistrate to issue an injunction restraining the person responsible from continuing this activity against public peace or safety. Such power may be exercised not only after the occurrence of a nuisance but also before it, as soon as the disturbance indicates an evident or imminent pattern. Prevention is always better, often more humane, than cure; that is what the section draws from.

To paint a picture: Suppose a local factory is fairly continuously spitting untreated chemicals out into a public drain, despite earlier warnings and even orders under Section 152. People have reported getting skin infections, foul smells, and health dangers. It is under Section 166 that the Sub Divisional Magistrate, on finding out this ongoingness, can prohibit the factory from carrying out this act without fresh proceedings, as it is already proven. The idea is that repetition of injury to the whole community is stopped.

In State of U.P. v. Ram Surat Singh[44], the Supreme Court emphasized the continuing nuisance orders because, according to it, the executive authorities, under the law mandated must act resolutely against repetitive violations that compromise the peaceful enjoyment of public spaces. Although this case was decided before the BNSS came into effect, the principle still holds: the judiciary affirmed that repeated public nuisances must be dealt with quickly and severely.

Thus, section 166 constitutes an important legal instrument in the hands of a Magistrate for maintaining public tranquility. It ensures that orders become God’s law against repeat offenders. This provision further seals gaps through which persons could comply temporarily but turn back to acts of nuisance once the glare has passed, thus strengthening accountability and deterrence in public law enforcement.

Section 167 – Power to Issue Order in Urgent Cases of Nuisance or Apprehended Danger[45]

Section 167 is an emergency measure within the BNSS framework for the maintenance of public order, likened to a legal alarm. It gives authority to Magistrates who are clothed with powers to deal with a situation of extreme urgency where waiting for the usual inquiry and hearing provisions of Sections 152 to 166 may lead to imminent harm and disorder. This section takes swift, decisive actions in full command of the law, based on material facts and sound reasoning, meant for the preservation of human lives, public safety, and social order. The situation for which it is considered is one of crisis, very swiftly developing circumstances wherein any unnecessary delay could lead to chaos. Imagine, for instance, that two rival community organizations scheduled processions to a narrow market lane on the same day. The situation is tense, with local intelligence suggesting possible communal violence. Under Section 167, the District Magistrate issues a written order banning these processions in that area for a specified time, which directly deals with the fear of disturbance to public tranquility and public safety. Temporary albeit, the order is fatally preventive: it buys time for peacekeeping and negotiation.

In philosophic tone, the Supreme Court, in the landmark judgment Gulam Abbas v. State of U.P.[46], upheld the validity of emergency orders issued under Section 144 CrPC (which corresponds to Section 167 BNSS): “Such powers generate a legitimate concern for public order only when they are applied seldom, with restraint, and because of an urgent public necessity.” The Court once more emphasized that the aim is not to restrain rights but to strike a balance between individual freedoms and the peaceful co-existence of the community, particularly where tension threatens to turn into violence.

This, therefore, illustrates how Section 167 denotes the public responsiveness of the law. It empowers the Executive Magistracy to act preemptively and responsibly in issuing considered orders with particularized facts spelled out with time limits, given the likelihood that urgent public concerns may fall through the cracks during the procedural process. The section also advocates for the legal maxim “necessitas non habet legem” in that necessity knows no law but ties these emergency powers firmly into the legal regime.

Summary Table: Sections 148–167 of BNSS (2023)

Section	Heading	Purpose / Essence
148	Conditional Order for Removal of Nuisance	Magistrate may direct removal or regulation of nuisance affecting public, e.g., unlawful trade, obstruction.
149	Service or Notification of Order	Ensures the conditional order is served personally or publicly notified for compliance.
150	Person to Whom Order is Addressed to Obey or Appear	Person must comply or appear and show cause against the order within the time specified.
151	Penalty for Failure to Comply	Non-compliance may lead to penalties or execution of order at defaulter’s cost.
152	Procedure Where Existence of Public Right is Denied	When public right is disputed, the Magistrate must inquire and refer to civil court if necessary.
153	Procedure Where There is an Obstruction in Public Way	Deals with temporary removal of obstructions in public places.
154	Injunction Pending Inquiry	Allows interim injunctions to prevent imminent danger while inquiry is pending.
155	Magistrate May Prohibit Repetition or Continuance of Public Nuisance	Magistrate can order discontinuation of repeated public nuisance activities.
156	Power to Issue Order in Urgent Cases	Magistrate may issue temporary orders to prevent disturbance, nuisance, or danger in emergency cases.
157	Procedure for Removal of Nuisance	Authorizes enforcement and execution of nuisance removal through local authorities or police.
158	Procedure Where Information is Given	Governs how police or public reports regarding potential nuisances are to be acted upon by the Magistrate.
159	Power to Issue Order on Police Report	Magistrate may take action on police reports without requiring formal inquiry in some situations.
160	Power to Direct Local Investigation	Magistrate can appoint an officer to investigate facts related to nuisance or obstruction.
161	Summoning Witnesses	Allows Magistrate to summon and examine witnesses during inquiry under Chapter XI.
162	Procedure Where Dispute Concerning Land or Water Exists	Magistrate may act to prevent breaches of peace arising from land/water disputes until resolved in civil court.
163	Power to Attach Subject of Dispute	Magistrate may attach property in dispute or appoint a receiver to maintain peace.
164	Dispute Between Two or More Parties	Empowers Magistrate to make orders to prevent breach of peace from private disputes.
165	Injunction Pending Inquiry	Magistrate may restrain parties temporarily to prevent serious danger during proceedings.
166	Magistrate May Prohibit Repetition or Continuance of Public Nuisance	Magistrate can prohibit further acts of nuisance even if inquiry is still pending or order already passed.
167	Power to Issue Order in Urgent Cases of Nuisance or Apprehended Danger	Emergency power to issue temporary orders to avoid riots, affray, injury to health or safety.

Recommendations for Better Implementation of Chapter XI of BNSS (2023)

An irresistible lowering of existential boundaries has been undoubtedly ushered in by the very introduction of Chapter XI in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), all related to public order and the prevention of nuisances. Yet, like any other law, success for the BNSS does not lay with legislation; its success depends on dynamic and effective enforcement. After all, these laws are not mere scribbles on paper; they undergo life in enforcement, interpretation, and the perception of accessibility and responsiveness to the people they are designed to serve. With this in mind, some critical recommendations arise to secure the potent enforcement of Chapter XI. One primary focus should be the training and sensitization of Executive Magistrates and police officers who are to implement the provisions of Sections 148 to 167. A pertinent parallel can be drawn from the Karamchari Sangh v. State of Uttar Pradesh (AIR 1981 All 48) case, where the Allahabad High Court held that orders passed under the corresponding Section 144 of CrPC (now Section 167 of BNSS) were in many instances, mechanically passed without adequate material or inquiry. That speaks of a deeper malaise, which is not of a bad act but of its understanding and execution. Many magistrates, especially those in rural or semi-urban jurisdictions, lack current-day training in the law and exposure to constitutional jurisprudence about public rights vis-a-vis public order. Refresher courses, online certification programs, and simulation-based training modules should be made mandatory if objective and subjective legal perspectives on enforcement and administrative empathy are to be instilled in them. Another recommendation is to institutionalize a standardized inquiry before passing orders under Section 148 (conditional order for removal of nuisance) and Section 152 (dispute about public rights). While the statute allows some discretion, the absence of structures within its application can lead to arbitrary exercise of discretion. Every district could maintain a public nuisance register for online access—record maintained collaboratively with local municipal and police departments. This would ensure that any order related to the nuisance would be backed by proper documentation, location’s past history, and expert input. In matters involving environmental threats—for example, illegal waste burning carried near residential colonies—such a documented history of complaint occurrences would further justify the Magistrate’s rationale in passing preventive or prohibitory orders. And besides, public participation mechanisms are to be inserted into the procedural flow. As seen in Destruction of Public and Private Properties v. State of A.P.[47],the Supreme Court laid down that preventing disturbance is not just the duty of the State; it is a shared insurance duty. Thus, involving Resident Welfare Associations, Market Associations, and NGOs as part of nuisance control cells can help preempt disputes at a grassroots level. These organizations can assist Magistrates with inputs on chronic offenders or local tensions, converting intelligence into timely action. It is also high time to lay down clear parameters that delineate “urgent” powers under Section 167. This section is strong—rightly so—but can be misused by the unrestrained. In Ramlila Maidan Incident[48], the Supreme Court pointed out the essence of proportionality in state action under emergency powers. Thus, orders under Chapter XI must, at all times, be time-bound, narrowly tailored, and supported by factual urgency. A model checklist or “urgency scorecard,” evaluated by two members of different professions, can be impressed into the training of the Magistrate to make sure all parameters are thought through—immediacy, magnitude, and possibility of escalation. Technology can act as a great leveler. Setting up an online portal for Chapter XI orders with scanned copies of the orders, reasons, and status updates would not only provide transparency but also act as a log for judicial review. If citizens or affected parties feel aggrieved against arbitrary or broad orders, they will be able to make use of this database while approaching the High Court or Sessions Court under review or writ jurisdiction. Another very important recommendation that comes into play is the legal aid system. People against whom orders under Chapter XI are issued are often poor or marginal communities—vendors, petty shopkeepers, farmers, etc.—but sadly, they are almost completely deprived of legal literacy. Denied the services of lawyers, the poor either comply with the orders blindly or take on penalties and proceedings due to their ignorance of their rights. The Legal Services Authorities at the District and Taluka levels should be physically mandated, therefore, to automatically assign a counsel to anyone summoned under Chapter XI proceedings. This would not only be a way of enforcing Article 21 but would also promote fair administration. In terms of legislative improvement, there are key definitional gaps in the BNSS, particularly in terms of the clear definitions of such terms as “nuisance”, “obstruction”, “danger” or “disturbance”. Currently, these terms depend on interpretation by the courts, but clearer definitions in the law or explanation clauses would further mitigate the ambiguity. For instance, the definition of the phrase, “public tranquility” in Section 167 has been interpreted very widely in several cases, and tightening the phrases might avoid overreach. Finally, this should become an embedded culture in the judiciary. If empowered sessions judges could then carry out quarterly reviews of the orders made under Chapter XI in their respective domains, reviewing reasoning, proportionality, and follow-through, this would reduce any systemic misuse while also educating magistrates on the right balance between order and rights. In short, it is not only the law but also responsive governance, constitutional balance, and empathetic administration that define good implementation of Chapter XI. The efficacy of these sections to avert violence, de-escalate disputes, and create social harmony is great, but it can be harnessed only when implemented wisely, humanely, and in a transparent manner. As India moves further into a digitalized and urbanizing future, so must its legal instruments-evolve not just in text but in application, outreach, and impact. A law that listens and adapts is a law that lasts.

Conclusion

“The law is not only to punish, but to prevent.” Chapter XI of the BNSS marks a progressive stride towards ensuring public order while balancing civil liberties. Its success, however, lies not just in its drafting but in thoughtful and fair implementation. With clearer definitions, accountable enforcement, and citizen-inclusive mechanisms, the BNSS can redefine preventive justice in India. As society evolves, so must the tools that protect it—firm, yet just. In Gandhi’s words, “Justice that love gives is a surrender, justice that law gives is a punishment.” Let this chapter be a step towards the former.

[1] Report of the Committee on Reforms of Criminal Justice System (2003), Ministry of Home Affairs, headed by Justice V.S. Malimath.

[2] Speech by Hon’ble Union Home Minister Amit Shah in Parliament, Lok Sabha Debates, August 2023.

[3] Interview with Justice B.N. Srikrishna, The Hindu, “Criminal Justice Cannot Be One-Sided”, October 2023.

[4] Justice D.Y. Chandrachud, Address at National Seminar on Criminal Law Reform, NLU Delhi, 2021.

[5] Prof. Faizan Mustafa, “From Colonial Codes to Constitutional Compassion,” The Indian Express, August 2023.

[6] AIR 1984 SC 512

[7] Justice B.N. Srikrishna, Interview with Bar & Bench, “Reforming Criminal Law Must Begin with Procedure,” September 2023.

[8] Section 148(1) authorizes any Executive Magistrate or officer in charge of a police station, or in their absence, any police officer not below the rank of sub-inspector, to command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse. It is the duty of the members of such assembly to disperse accordingly.(2) provides that if such an assembly does not disperse upon command, or conducts itself in a manner showing a determination not to disperse, the aforementioned authorities may proceed to disperse such assembly by force and may require assistance from any person, not being an officer or member of the armed forces, for dispersing the assembly and arresting and confining its members to disperse the assembly or punish them according to law.​

[9] AIR 1979 P&H 200

[10] (1) If any assembly referred to in sub-section (1) of section 148 cannot otherwise be dispersed, and it is necessary for the public security that it should be dispersed, the District Magistrate or any other Executive Magistrate authorised by him, who is present, may cause it to be dispersed by the armed forces.

(2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Executive Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.

(3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons.

[11] AIR 1971 SC 2486

[12] When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any persons forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such action.

[13] 1992 Supp (1) SCC 222

[14] (1) No prosecution against any person for any act purporting to be done under section 148, section 149 or section 150 shall be instituted in any Criminal Court except—

(a) with the sanction of the Central Government where such person is an officer or member of the armed forces;

(b) with the sanction of the State Government in any other case.

(2) (a) No Executive Magistrate or police officer acting under any of the said sections in good faith;

(b) no person doing any act in good faith in compliance with a requisition under section 148 or

section 149;

(c) no officer of the armed forces acting under section 150 in good faith;

(d) no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence.

(3) In this section and in the preceding sections of this Chapter,—

(a) the expression “armed forces” means the army, naval and air forces, operating as land forces

and includes any other armed forces of the Union so operating;

(b) “officer”, in relation to the armed forces, means a person commissioned, gazetted or in pay as

an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer;

(c) “member”, in relation to the armed forces, means a person in the armed forces other than an

officer.

 

[15] (1998) 2 SCC 109

[16] (1) Whenever a District Magistrate or a Sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—

(a) that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e) that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order—

(i) to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such

trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such

manner as may be directed; or

(iii) to prevent or stop the construction of such building, or to alter the disposal of such

substance; or

(iv) to remove, repair or support such building, tent or structure, or to remove or support such

trees; or

(v) to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said

order, or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court.

Explanation.—A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes

[17] AIR 1980 SC 1622

[18] (1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of summons.

(2) If such order cannot be so served, it shall be notified by proclamation published in such manner as the State Government may, by rules, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

[19] AIR 1966 SC 1910

[20] The person against whom such order is made shall—

(a) perform, within the time and in the manner specified in the order, the act directed thereby; or

(b) appear in accordance with such order and show cause against the same; and such appearance or hearing may be permitted through audio-video conferencing.

[21] AIR 1956 SC 559

[22] If the person against whom an order is made under section 154 does not perform such act or appear and show cause, he shall be liable to the penalty specified in that behalf in section 223 of the Bharatiya Nyaya Sanhita, 2023, and the order shall be made absolute.

[23] 2001 Cri LJ 3415 (Bom)

[24] (1) Where an order is made under section 152 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 157, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 157.

(3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

[25] AIR 1952 SC 252

[26] (1) If the person against whom an order under section 152 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.

(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.

(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case: Provided that the proceedings under this section shall be completed, as soon as possible, within a period of ninety days, which may be extended for the reasons to be recorded in writing, to one hundred and twenty days.

[27] AIR 1989 SC 2097

[28] 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.

[29] 2001 Cri LJ 3978 (Mad)

[30] (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.

 

[31] (1) When an order has been made absolute under section 155 or section 157, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within the time to be fixed in the notice, and inform him that, in case of disobedience, he shall be liable to the penalty provided by section 223 of the Bharatiya Nyaya Sanhita, 2023.

(2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction, and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.

[32] (2000) Cri LJ 3272 (All)

[33] (1) If a Magistrate making an order under section 152 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

(2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.

(3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section

[34] AIR 1980 SC 1622

[35] A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Bharatiya Nyaya Sanhita, 2023, or any special or local law.

[36] AIR 2001 SC 902

[37] (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 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.

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

(3) An order under this section 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 if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him or by his predecessor-in-office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4).

(7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by an advocate and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.

 

[38] AIR 1999 SC 1929

[39] “If the person against whom an order is made under section 152 does not perform the act directed thereby within the time fixed, or within such further time as the Magistrate may allow, the Magistrate may cause it to be done and may recover the costs of doing it from such person.”

[40] AIR 2003 Mad 128

[41] “If a Magistrate making an order under section 152 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may, before the completion of the inquiry, direct the person against whom the order was made to desist from carrying on, or to remove, such act or obstruction.”

[42] (2014) 5 SCC 252

[43] “A District Magistrate or Sub-divisional Magistrate or any other Executive Magistrate or officer empowered by the State Government in this behalf may order any person not to repeat or continue a public nuisance, as defined in the Bharatiya Nyaya Sanhita, 2023.”

[44] AIR 1981 SC 1022

[45] “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, 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 tranquility, or a riot, or an affray.”

[46] AIR 1981 SC 2198

[47] (2009) 5 SCC 212

[48] (In Re, 2012) 5 SCC 1