In The Bharatiya Nagarik Suraksha Sanhita the
equivalent provision for Section 144 CrPC is Section 163 BNSS. There has not
been any significant change in the provisions heading or contents of this
section. The only change it appears is made in the Section number.
Let’s now dive into a comprehensive exploration of Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS). This section deals with urgent cases of nuisance or apprehended danger and empowers magistrates to issue orders to prevent harm or disturbance. As we dissect this provision, we’ll explore its nuances, implications, and practical applications.
“163. Power to issue order in urgent cases of
nuisance or apprehended danger.— (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.”
Context and Purpose
Section 163
of the BNSS addresses situations where immediate action is necessary to prevent
harm, obstruction, or disturbance. It grants specific powers to magistrates,
allowing them to issue orders promptly. Let’s break down the key elements:
Who Can Exercise This Power?
It is important to see that who all have the power to enforce this section on ground and if there is any change. The section applies to:
- District Magistrates
- Sub-divisional Magistrates
- Other Executive Magistrates specially empowered by the State Government.
This means that the Executive has the powers
to implement the provision on ground. If you see clearly, judicial magistrates
do not find an mention with respect to powers of this section. This means that
unlike in most provisions, a Judicial magistrate of any class does not have the
power to go ahead and implement Section 163 on ground. The magistrate must have
sufficient grounds to proceed under this section. The situation must warrant immediate
prevention or speedy remedy.
The magistrate will then issue a written order stating the material facts and circumstances of the case. The order is served in the manner provided by Section 153 BNSS (which deals with service of summons).
Abstaining from Acts or Taking Certain Measures
The order directs a person to abstain from a certain act, or Take certain measures with respect to specific property in their possession or management.
There are four primary purpose to prevent, mentioned in the provision, where the provision can be used:
- Obstruction, annoyance, or injury to anyone lawfully employed,
- Danger to human life, health, or safety,
- Disturbance of public tranquillity, or
- Riots or affrays.
In case of emergencies or when timely notice
isn’t feasible, the magistrate may pass an ex parte order. This ensures
immediate action without waiting for the other party’s response.
Duration and Review
No order under this section remains in force
for more than two months from its issuance. However, If the State
Government deems it necessary to prevent danger to life, health, safety, riots,
or affrays, it can extend the order’s validity by up to six months
beyond the initial two months. This extension is done through a notification.
Rescission or Alteration
The magistrate who issued the order or any
subordinate magistrate can rescind or alter it. The State Government also has
this power.
Opportunity to Be Heard
If someone is aggrieved by the order, they can
apply for its rescission or alteration. The magistrate or State Government must
provide an early opportunity for the applicant to appear and present their
case.
Practical Implications and Challenges
Following are the main challenges one must face to secure proper implementation of the provision under section 163 BNSS :
- Balancing
Rights: While this
provision aims to prevent harm, magistrates must strike a balance between
public safety and individual rights.
- Judicial
Scrutiny: Courts may
review orders to ensure they meet legal standards and aren’t arbitrary.
- Emergency
Situations: The ex
parte provision allows swift action but requires careful use to avoid
abuse.
Conclusion
In conclusion, Section 163 BNSS
empowers magistrates to act swiftly when urgent situations demand preventive
measures. It embodies the delicate dance between maintaining order and
safeguarding individual liberties.
This means that this provision is primarily drafted with emergencies and purpose to prevent in mind. It is not a provision that is susceptible to delay as its very purpose it to have a tool/provision at disposal of the Executive, so as to prevent an action/offence/situation by an person or group of persons against the state. While this provision aims to prevent harm, magistrates must strike a balance between public safety and individual rights. This ex-parte provision allows swift action but requires careful use to avoid abuse. And it’s not like Judicial courts do not have any powers with respect to this provision, Courts may review orders to ensure they meet legal standards and aren’t arbitrary.
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