Section 152 of BNSS, 2023 — Conditional Order for Removal of Nuisance

Introduction

Section 152 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a preventive mechanism for dealing with public nuisances and other conditions that threaten public health, safety, convenience or physical comfort.

It empowers specified Executive Magistrates to issue a conditional order requiring the person responsible for the nuisance or dangerous condition to take specified corrective action within a fixed time. Alternatively, the person may appear before the Magistrate and show cause why the order should not be made absolute.

Section 152 forms the beginning of Part B, “Public nuisances”, under Chapter XI of the BNSS. It is substantially the continuation of Section 133 of the Code of Criminal Procedure, 1973 (CrPC). The subsequent provisions, particularly Sections 153 to 162, establish the procedure for service, showing cause, inquiry, making the order absolute and preventing repetition of the nuisance.

Meaning of Section 152

Section 152 deals with a conditional order for removal of nuisance.

Where the statutory conditions exist, a District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate may, on receiving a police report or other information and after taking such evidence as the Magistrate considers appropriate, issue an order requiring the person responsible to:

• remove an obstruction or nuisance;
• stop, prohibit or regulate a trade or occupation;
• remove or regulate dangerous goods or merchandise;
• prevent or stop dangerous construction;
• remove, repair or support a dangerous building or structure;
• remove or support a dangerous tree;
• fence a dangerous tank, well or excavation; or
• destroy, confine or otherwise dispose of a dangerous animal.

The order is called conditional because the person may either comply with the direction or appear before the Magistrate and show cause against making the order absolute.

Statutory Basis

The principal provision is Section 152 of the BNSS, 2023.

It is connected with:

• Section 153 — Service or notification of order.
• Section 154 — Person to whom order is addressed to obey or show cause.
• Section 155 — Penalty for failure to comply with Section 154.
• Section 156 — Procedure where existence of public right is denied.
• Section 157 — Procedure where the person against whom the order is made appears to show cause.
• Section 158 — Power of Magistrate to direct local investigation and examination of an expert.
• Section 159 — Power of Magistrate to furnish written instructions, etc.
• Section 160 — Procedure on order being made absolute and consequences of disobedience.
• Section 161 — Injunction pending inquiry.
• Section 162 — Magistrate may prohibit repetition or continuance of public nuisance.
• Section 163 — Power to issue order in urgent cases of nuisance or apprehended danger.

Section 152 is therefore the starting point of the statutory public-nuisance procedure under BNSS.

Object and Purpose

The purpose of Section 152 is preventive rather than punitive.

It enables the Magistrate to intervene where an existing obstruction, nuisance, dangerous activity, dangerous structure or similar condition affects the public.

The provision seeks to protect:

• public health;
• public safety;
• public convenience;
• physical comfort of the community; and
• persons using public places and public ways.

It is particularly significant because public nuisance may require prompt administrative intervention before the harm becomes more serious.

Nature of Section 152

Section 152 is a preventive and summary public-order provision.

It does not operate like an ordinary criminal trial in which an accused is prosecuted for an offence already committed. Instead, it enables the Executive Magistrate to require corrective action where the statutory jurisdictional conditions are satisfied.

The proceeding is directed primarily at removing or preventing a public nuisance or danger, rather than determining criminal guilt.

The Supreme Court’s interpretation of the corresponding Section 133 CrPC has emphasised the public nature of the jurisdiction and its preventive character. In Municipal Council, Ratlam v. Vardhichand, the Court treated the Magistrate’s power to abate public nuisance as a public duty when the jurisdictional facts exist.

Who Can Pass an Order under Section 152?

The power is available to:

1. District Magistrate

The District Magistrate may exercise the jurisdiction contemplated by Section 152.

2. Sub-divisional Magistrate

A Sub-divisional Magistrate may also make a conditional order under the provision.

3. Specially empowered Executive Magistrate

Any other Executive Magistrate specially empowered in this behalf by the State Government may exercise the power.

Thus, not every Executive Magistrate automatically possesses the power merely by virtue of holding that office. The statutory requirement of special empowerment applies to the third category.

Source of Information

The Magistrate may act after receiving:

• a report of a police officer; or
• other information.

The provision therefore does not restrict initiation exclusively to a police report.

The Magistrate may also take such evidence, if any, as the Magistrate thinks fit before deciding whether the statutory conditions exist.

Essential Elements

1. Information concerning a nuisance or dangerous condition

The Magistrate must receive a police report or other information concerning circumstances falling within Section 152.

The provision covers several specified forms of public nuisance and danger.

2. Consideration by the Magistrate

The Magistrate must consider the information and may take such evidence as the Magistrate thinks fit.

The power is therefore not intended to operate mechanically upon every complaint.

3. Existence of a statutory condition

The facts must fall within one of the categories specified in Section 152(1)(a) to (f).

These categories are discussed below.

4. Conditional order

If the Magistrate considers that the statutory requirements are satisfied, the Magistrate may issue a conditional order.

5. Opportunity to show cause

The person affected by the order may choose to comply with the direction or appear before the Magistrate, or another Executive Magistrate subordinate to him as specified in the order, and show cause why the order should not be made absolute.

This show-cause mechanism is an essential part of the statutory scheme.

Categories of Nuisance and Danger under Section 152

Section 152(1) identifies six principal categories.

1. Unlawful obstruction or nuisance

Under Section 152(1)(a), the Magistrate may act where an unlawful obstruction or nuisance should be removed from:

• a public place;
• a way;
• a river; or
• a channel

which is or may lawfully be used by the public.

The focus is on obstruction or nuisance affecting places or routes lawfully available for public use.

2. Trade or occupation injurious to the community

Under Section 152(1)(b), action may be taken where:

• the conduct of a trade or occupation; or
• the keeping of goods or merchandise

is injurious to the health or physical comfort of the community.

The Magistrate may consequently require the trade or occupation to be:

• prohibited;
• regulated;

or may require the goods or merchandise to be:

• removed; or
• regulated in the manner directed.

The provision is concerned with injury to the community rather than merely a private disagreement between individual neighbours.

3. Dangerous construction or disposal of substances

Under Section 152(1)(c), the Magistrate may act where:

• the construction of a building; or
• the disposal of a substance

is likely to occasion conflagration or explosion.

The construction may therefore be required to be prevented or stopped, while the disposal of the substance may be required to be altered.

4. Dangerous building, structure or tree

Section 152(1)(d) covers a:

• building;
• tent;
• structure; or
• tree

that is in such a condition that it is likely to fall and cause injury to persons:

• living in the neighbourhood;
• carrying on business there; or
• passing by.

The Magistrate may require:

• removal;
• repair;
• support;

of the building, tent or structure, or may require the tree to be removed or supported.

5. Dangerous tank, well or excavation

Under Section 152(1)(e), the Magistrate may act where a:

• tank;
• well; or
• excavation

adjacent to a public way or public place should be fenced in a manner that prevents danger to the public.

6. Dangerous animal

Under Section 152(1)(f), the Magistrate may act where a dangerous animal should be:

• destroyed;
• confined; or
• otherwise disposed of.

The order may specify the manner in which the animal is to be dealt with.

Contents of the Conditional Order

The conditional order must require the concerned person, within a time fixed in the order, either to undertake the specified corrective action or, if the person objects, to appear before the Magistrate and show cause why the order should not be made absolute.

Depending upon the nature of the nuisance, the order may require the person to:

• remove the obstruction or nuisance;
• desist from a trade or occupation;
• regulate the trade or occupation;
• remove goods or merchandise;
• regulate the keeping of goods;
• stop or prevent construction;
• alter the disposal of a substance;
• remove, repair or support a building, tent or structure;
• remove or support a tree;
• fence a tank, well or excavation; or
• destroy, confine or otherwise dispose of a dangerous animal.

Procedure

Section 152 is the first stage in a broader statutory process.

Step 1: Receipt of information

The Magistrate receives:

• a police report; or
• other information.

Step 2: Consideration of evidence

The Magistrate may take such evidence as he thinks fit.

Step 3: Satisfaction regarding the statutory condition

The Magistrate considers whether one of the situations listed in Section 152(1)(a) to (f) exists.

Step 4: Conditional order

If satisfied, the Magistrate makes a conditional order requiring the responsible person to take the specified corrective action within the prescribed time.

Step 5: Compliance or show cause

Under the order, the person may:

• carry out the required action; or
• appear before the Magistrate and show cause against the order being made absolute.

Step 6: Subsequent inquiry

If the person appears to show cause, the procedure under the succeeding provisions, particularly Section 157, becomes relevant.

Step 7: Final order

If the statutory requirements are satisfied after the prescribed procedure, the order may be made absolute under the subsequent provisions.

The detailed procedure after the conditional order is therefore not contained entirely within Section 152 itself.

Public Nuisance and Private Dispute

Section 152 is concerned with public nuisance, not merely a private dispute between two individuals.

This distinction is important.

In Kachrulal Bhagirath Agrawal v. State of Maharashtra, the Supreme Court, while interpreting Section 133 CrPC, explained that proceedings under the provision are intended to protect the public as a whole against inconvenience and are not ordinarily meant to settle purely private disputes.

The Court also stressed that where Section 133 is invoked in relation to a trade or occupation, the injury must concern the health or physical comfort of the community and not merely the grievance of an individual.

The same statutory framework substantially continues under Section 152 BNSS.

Public Place

The Explanation to Section 152 provides that “public place” includes:

• property belonging to the State;
• camping grounds; and
• grounds left unoccupied for sanitary or recreative purposes.

This expands the practical understanding of the expression beyond roads and conventional public spaces.

Civil Court Jurisdiction

Section 152(2) provides that a duly made order of a Magistrate under the section cannot be called in question in any Civil Court.

This reflects the special statutory character of the public-nuisance proceeding.

It does not mean that every aspect of the Magistrate’s action is beyond judicial scrutiny. The provision specifically addresses the calling in question of the duly made order in a Civil Court, while remedies available under the criminal-procedure and constitutional framework remain governed by the applicable law.

Judicial Interpretation

Municipal Council, Ratlam v. Vardhichand

The Supreme Court’s decision in Municipal Council, Ratlam v. Vardhichand is a leading authority concerning the corresponding Section 133 CrPC.

The case concerned public nuisance arising from inadequate sanitation, open drains and related conditions.

The Supreme Court held that where the jurisdictional facts for Section 133 exist, the Magistrate’s public power carries a corresponding public duty to address the nuisance.

The decision is important for understanding the preventive and public-oriented nature of Section 152 BNSS.

Kachrulal Bhagirath Agrawal v. State of Maharashtra

In Kachrulal Bhagirath Agrawal v. State of Maharashtra, the Supreme Court considered proceedings under Section 133 CrPC involving the storage and handling of dry chillies.

The Court explained that proceedings under Section 133 are summary in nature and are directed towards public nuisance. It also distinguished the provision from Section 144 CrPC, observing that Section 133 specifically addresses identified forms of nuisance, whereas Section 144 is broader.

The Court further emphasised that, for trade or occupation to fall within the provision, the interference must affect the health or physical comfort of the community rather than merely a private individual.

These decisions were rendered under the CrPC and should be understood as persuasive interpretative guidance for the substantially corresponding Section 152 BNSS, rather than as decisions directly interpreting the new BNSS provision.

Section 152 and Section 163

Section 152 and Section 163 both concern nuisance or danger, but they serve different procedural purposes.

Section 152 deals with specified forms of public nuisance and dangerous conditions through a conditional order followed by the statutory show-cause procedure.

Section 163 deals with urgent cases of nuisance or apprehended danger and permits the Magistrate to issue an order where immediate prevention or speedy remedy is desirable.

The distinction is important because Section 152 is the specific public-nuisance mechanism, while Section 163 is designed for urgent situations requiring immediate preventive action.

Section 152 and Section 154

Section 152 creates the conditional order.

Section 154 addresses the person to whom the order is directed and requires that person to obey the order or show cause in the manner prescribed.

Therefore, Section 152 should not be read in isolation from the succeeding procedural provisions.

Section 152 and Section 160

Section 160 deals with the procedure after an order is made absolute and the consequences of disobedience.

Thus, the statutory sequence is:

• conditional order under Section 152;
• service or notification under Section 153;
• obedience or show cause under Section 154;
• inquiry where required;
• making the order absolute under the subsequent provisions; and
• consequences of disobedience under Section 160 and other applicable law.

Constitutional Connection

Section 152 serves a public-health and public-safety function and therefore interacts with the State’s obligation to protect public welfare.

At the same time, the provision can affect:

• property use;
• business activities;
• occupation;
• possession and control of structures or goods.

Its exercise must therefore remain within the statutory conditions and comply with constitutional standards governing lawful State action.

Article 21 may become relevant where the nuisance or dangerous condition concerns health and safety, while Article 14 remains relevant to non-arbitrary exercise of statutory power.

The statutory opportunity to show cause is particularly significant because it allows the affected person to contest the proposed action before the order becomes absolute.

Exceptions and Limitations

The Magistrate must act within the statutory categories

Section 152 does not confer unlimited authority to order removal of anything the Magistrate considers undesirable. The facts must fall within one of the categories in Section 152(1)(a) to (f).

Public character of the nuisance

The provision is directed toward public nuisance and danger to the community or public users, rather than ordinary private disputes.

Conditional nature of the order

The initial order is conditional. The person affected may show cause against making it absolute.

Evidence may be considered

The Magistrate may take such evidence as he thinks fit before making the conditional order.

Special empowerment

An Executive Magistrate other than a District Magistrate or Sub-divisional Magistrate must be specially empowered by the State Government to exercise the power.

Civil Court challenge

A duly made order under Section 152 cannot be called in question in a Civil Court by virtue of Section 152(2).

BNSS and CrPC

Section 152 BNSS corresponds substantially to Section 133 CrPC.

The numbering has changed, but the central statutory mechanism has been retained.

The corresponding provisions are:

• Section 133 CrPC: Conditional order for removal of nuisance.
• Section 152 BNSS: Conditional order for removal of nuisance.

The subsequent provisions have also been renumbered:

• Section 134 CrPC corresponds to Section 153 BNSS.
• Section 135 CrPC corresponds to Section 154 BNSS.
• Section 136 CrPC corresponds broadly to Section 155 BNSS.
• Section 137 CrPC corresponds to Section 156 BNSS.
• Section 138 CrPC corresponds to Section 157 BNSS.
• Section 139 CrPC corresponds to Section 158 BNSS.
• Section 140 CrPC corresponds to Section 159 BNSS.
• Section 141 CrPC corresponds to Section 160 BNSS.
• Section 142 CrPC corresponds to Section 161 BNSS.
• Section 143 CrPC corresponds to Section 162 BNSS.
• Section 144 CrPC corresponds to Section 163 BNSS.

The principal framework of public-nuisance proceedings has therefore been carried forward into BNSS with revised numbering.

Relationship with BNS and BSA

The Bharatiya Nyaya Sanhita, 2023 (BNS) primarily contains substantive offences and punishments.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) governs criminal procedure and preventive public-order mechanisms, including Section 152.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence.

Section 152 itself is therefore a procedural and preventive provision. It does not create a standalone criminal offence merely because a Magistrate makes a conditional order.

If a person subsequently disobeys a lawful order, the legal consequences are governed by the applicable provisions, including the procedure and consequences provided in the succeeding BNSS provisions.

Common Confusions

Is Section 152 applicable only to obstruction of roads?

No.

Road or public-way obstruction is only one category. Section 152 also covers dangerous trades or occupations, harmful goods, dangerous construction, unsafe buildings or trees, dangerous tanks or excavations and dangerous animals.

Can a Magistrate immediately make the conditional order absolute?

Not merely because the initial information suggests a nuisance.

Section 152 provides a conditional order and gives the affected person the opportunity to obey it or show cause. The subsequent provisions govern the inquiry and making of the order absolute.

Is Section 152 meant for private disputes between neighbours?

No.

Its principal purpose is the removal or prevention of public nuisance and danger affecting the community or public users.

Can any Executive Magistrate issue an order under Section 152?

No.

The section expressly identifies the District Magistrate and Sub-divisional Magistrate and also permits another Executive Magistrate to exercise the power if specially empowered by the State Government.

Is Section 152 the same as Section 163 BNSS?

No.

Section 152 concerns specified public nuisances and operates through a conditional order and show-cause mechanism. Section 163 addresses urgent cases of nuisance or apprehended danger requiring immediate preventive action.

Can a trade be regulated under Section 152?

Yes.

Where the conduct of a trade or occupation is injurious to the health or physical comfort of the community, the Magistrate may prohibit or regulate the trade or occupation as permitted by the provision.

Example

Suppose a commercial establishment stores a large quantity of material in a manner that creates a serious risk of fire or explosion in a locality.

On receiving a police report or other information and considering the material available, the competent Executive Magistrate may invoke Section 152 if the statutory requirements are satisfied.

The conditional order may require the responsible person to alter or stop the dangerous activity within the specified time. The person may comply or appear before the Magistrate and show cause why the order should not be made absolute.

If the matter proceeds further, the succeeding provisions of the BNSS govern the inquiry and final order.

Topic at a Glance

• Topic: Conditional order for removal of nuisance
• BNSS Section: Section 152
• Chapter: Chapter XI, Maintenance of Public Order and Tranquillity
• Part: B, Public nuisances
• Nature: Preventive and summary proceeding
• Competent authorities: District Magistrate, Sub-divisional Magistrate and specially empowered Executive Magistrate
• Source of information: Police report or other information
• Main requirement: Facts must fall within one of the statutory nuisance or danger categories
• Order: Conditional order requiring corrective action or appearance to show cause
• Major categories: Public obstruction, harmful trade or occupation, dangerous construction or substance, unsafe structure or tree, dangerous tank/well/excavation, dangerous animal
• Public place: Includes State property, camping grounds and unoccupied grounds used for sanitary or recreational purposes
• Civil Court: A duly made order cannot be called in question in a Civil Court
• Corresponding CrPC provision: Section 133
• Important cases: Municipal Council, Ratlam v. Vardhichand; Kachrulal Bhagirath Agrawal v. State of Maharashtra
• Related provisions: Sections 153 to 163 BNSS

Quick Revision

• Section 152 BNSS deals with a conditional order for removal of public nuisance.
• It substantially corresponds to Section 133 CrPC.
• The power may be exercised by the District Magistrate, Sub-divisional Magistrate or a specially empowered Executive Magistrate.
• The Magistrate may act on a police report or other information.
• The Magistrate may take such evidence as he thinks fit.
• Section 152 covers six principal categories of nuisance or danger.
• These include public obstruction, harmful trade or occupation, dangerous construction or disposal of substances, unsafe buildings or trees, dangerous tanks or excavations and dangerous animals.
• The order is conditional.
• The person affected may comply with the order or appear and show cause against it being made absolute.
• Section 152 is primarily concerned with public nuisance, not private disputes.
• A duly made order under Section 152 cannot be called in question in a Civil Court.
• Section 153 deals with service or notification of the order.
• Section 154 deals with obeying the order or showing cause.
• Section 157 deals with the procedure where the person appears to show cause.
• Section 160 deals with an order being made absolute and consequences of disobedience.
• Section 163 separately deals with urgent cases of nuisance or apprehended danger.
• Municipal Council, Ratlam v. Vardhichand remains an important authority on the corresponding Section 133 CrPC.
• Kachrulal Bhagirath Agrawal v. State of Maharashtra explains the public nature and scope of proceedings under Section 133 CrPC.
• CrPC decisions should be identified as decisions under the earlier provision when used to interpret Section 152 BNSS.

ASLO READ: Section 151 – Protection against prosecution for acts done under sections 148, 149 and 150

Conclusion

Section 152 of the BNSS provides the foundational mechanism for preventive action against public nuisance. It enables competent Executive Magistrates to require the removal or regulation of specified conditions affecting public health, safety, convenience and physical comfort, while preserving an opportunity for the affected person to show cause before the order becomes absolute.

The provision substantially continues the framework of Section 133 CrPC. Its practical significance lies in allowing the Magistrate to address public nuisance before it causes greater harm, while the conditional nature of the order and the succeeding procedural safeguards prevent the power from operating as an automatic final determination.

For examination purposes, the core principle is that Section 152 BNSS empowers specified Executive Magistrates to issue conditional orders for removal or regulation of defined public nuisances and dangerous conditions, subject to the statutory show-cause procedure.