Section 163 of BNSS, 2023 — Power to Issue Order in Urgent Cases of Nuisance or Apprehended Danger

Introduction

Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides a preventive mechanism for dealing with urgent situations involving nuisance, apprehended danger, threats to public tranquillity, or risks to human life, health or safety.

The provision empowers specified Executive Magistrates to issue written orders directing a person to abstain from a particular act or to take certain measures concerning property in their possession or management.

Section 163 substantially corresponds to Section 144 of the Code of Criminal Procedure, 1973 (CrPC).

Meaning of Section 163

Section 163 is a preventive provision. It is intended to prevent an anticipated danger or disturbance rather than punish a person for an offence already committed.

Where the statutory conditions are satisfied, an Executive Magistrate may issue an order requiring a person:

• to abstain from a particular act; or
• to take certain measures concerning property in their possession or management.

The power is exercised where immediate prevention or a speedy remedy is considered necessary.

Statutory Basis

The principal provision is Section 163 of the BNSS, 2023.

It falls under Chapter XI of the BNSS, which deals with maintenance of public order and tranquillity.

The provision is titled:

“Power to issue order in urgent cases of nuisance or apprehended danger.”

Related provisions include:

• Section 153: Service or notification of orders
• Section 162: Power to prohibit repetition or continuance of public nuisance
• Section 164: Procedure where dispute concerning land or water is likely to cause breach of peace
• Section 168: Police to prevent cognizable offences
• Section 170: Arrest to prevent commission of cognizable offences

Object and Purpose

The primary object of Section 163 is to enable immediate preventive action in situations where delay may result in serious consequences.

The provision seeks to prevent:

• obstruction;
• annoyance;
• injury to persons lawfully employed;
• danger to human life;
• danger to human health;
• danger to human safety;
• disturbance of public tranquillity;
• riot; or
• affray.

It is therefore an important mechanism for maintaining public order and preventing imminent harm.

Nature of Section 163

Section 163 confers a preventive and emergency power upon specified Executive Magistrates.

It is not a provision for determining criminal guilt. The Magistrate acts to prevent an anticipated danger or disturbance.

The power is discretionary, but it must be exercised on the basis of the statutory requirements and relevant facts. The written order must disclose the material facts forming the basis of the Magistrate’s satisfaction.

Essential Elements

1. Competent Magistrate

An order under Section 163 may be issued by:

• the District Magistrate;
• the Sub-divisional Magistrate; or
• any other Executive Magistrate specially empowered by the State Government.

Therefore, the authority issuing the order must possess the statutory jurisdiction to exercise the power.

2. Sufficient Ground

The Magistrate must consider that there is sufficient ground for proceeding under Section 163.

The decision must be based upon relevant circumstances and cannot be an arbitrary exercise of power.

3. Immediate Prevention or Speedy Remedy

The Magistrate must consider that immediate prevention or a speedy remedy is desirable.

This is one of the central characteristics of Section 163. The provision is intended for situations requiring prompt preventive intervention.

4. Written Order

The Magistrate must issue a written order stating the material facts of the case.

The order may be directed against a particular person or persons, or against persons generally when the circumstances make such a direction necessary.

5. Direction to Abstain or Act

The Magistrate may direct a person:

• to abstain from a particular act; or
• to take certain measures concerning property in the person’s possession or management.

The direction must be connected with the preventive purposes specified in the section.

6. Prevention of Specified Dangers

The Magistrate must consider that the order is likely to prevent, or tends to prevent:

• obstruction;
• annoyance;
• injury to any person lawfully employed;
• danger to human life;
• danger to human health;
• danger to human safety;
• disturbance of public tranquillity;
• riot; or
• affray.

Ex Parte Orders

Section 163 permits the Magistrate, in cases of emergency or where circumstances do not allow service of notice in sufficient time, to pass an order without first hearing the affected person.

Such an order is commonly described as an ex parte order.

The purpose is to ensure that preventive action is not defeated by the delay involved in giving prior notice.

However, the emergency nature of the power does not mean that the Magistrate can act without applying the statutory requirements.

Duration of the Order

An order under Section 163 ordinarily remains in force for a maximum period of two months from the date of making it.

The State Government may, where it considers necessary, direct continuation of the order for a further period, but the total period cannot exceed six months from the date on which the order was originally made.

Thus:

• Ordinary maximum period: 2 months
• Extension by State Government: up to a further 4 months
• Maximum overall period: 6 months

Alteration or Rescission of the Order

Section 163 also provides a mechanism for rescinding or altering an order.

A person affected by the order may make an application to the Magistrate requesting that the order be rescinded or altered.

The Magistrate is required to consider the application and give the applicant an opportunity of appearing before the Magistrate either personally or through an advocate.

Where the Magistrate rejects the application, reasons must be recorded in writing.

Territorial Scope

The power under Section 163 can operate within the territorial jurisdiction of the Magistrate.

In appropriate circumstances, the order may apply to:

• a particular individual;
• persons residing in a particular area; or
• persons frequenting or visiting a particular area,

depending upon the circumstances and the nature of the apprehended danger.

The order must remain connected with the statutory purpose of preventing the relevant danger or disturbance.

Powers of the Executive Magistrate

The Executive Magistrate may:

• issue a written preventive order;
• direct a person to abstain from a particular act;
• direct a person to take measures concerning property;
• issue an order in urgent circumstances without prior notice where statutory conditions are satisfied;
• alter or rescind an order where appropriate; and
• continue an order within the limits prescribed by the BNSS.

These powers must be exercised for the preventive purposes specified in Section 163.

Limitations on the Power

Section 163 is an extraordinary preventive power and therefore cannot be exercised mechanically.

The Magistrate must consider:

• whether sufficient grounds exist;
• whether immediate prevention or a speedy remedy is necessary;
• whether the proposed direction is connected with the statutory grounds;
• whether the order is supported by material facts;
• whether the duration prescribed by law is respected; and
• whether the affected person’s statutory opportunity to seek alteration or rescission is preserved.

An order that does not satisfy the statutory requirements may be challenged before the appropriate court.

Section 163 and Public Assemblies

Section 163 may be used where circumstances involving an assembly or gathering create a situation covered by the statutory grounds, such as apprehended riot, affray or disturbance of public tranquillity.

However, the mere existence of a public gathering does not automatically justify an order under Section 163.

The Magistrate must have sufficient grounds and must satisfy the statutory requirements.

Constitutional Connection

Section 163 must be exercised consistently with constitutional protections.

Depending upon the circumstances, an order may affect rights such as:

• freedom of speech and expression under Article 19(1)(a);
• the right to assemble peaceably under Article 19(1)(b);
• the freedom to move throughout India under Article 19(1)(d);
• the freedom to carry on an occupation, trade or business under Article 19(1)(g); and
• personal liberty under Article 21.

These freedoms are not absolute. Restrictions may be imposed where constitutionally permissible.

The exercise of Section 163 therefore requires a proper balance between individual freedoms and the need to prevent public disorder, danger or other circumstances covered by the provision.

Important Case Law

Madhu Limaye v. Sub-Divisional Magistrate

The Supreme Court considered the corresponding provision under Section 144 of the CrPC.

The Court recognised the preventive nature of the power and examined the circumstances in which such an extraordinary power could be exercised.

The decision emphasised that the power is intended to deal with urgent situations and must be exercised according to the statutory requirements.

The principles developed under Section 144 CrPC remain relevant to Section 163 BNSS to the extent that the statutory framework is substantially similar.

Babulal Parate v. State of Maharashtra

The Supreme Court considered the constitutional validity and scope of Section 144 CrPC.

The Court recognised that preventive restrictions may be imposed where circumstances justify immediate action for maintaining public order, subject to constitutional limitations.

The case remains relevant when examining the constitutional framework surrounding preventive orders under the corresponding BNSS provision.

Anuradha Bhasin v. Union of India

The Supreme Court examined the exercise of powers under Section 144 CrPC in the context of restrictions affecting constitutional freedoms.

The Court stressed that the power cannot be used as a means of suppressing legitimate expression and that restrictions must satisfy constitutional standards of necessity and proportionality.

The principles are relevant when Section 163 BNSS is used in circumstances affecting fundamental freedoms.

BNSS and CrPC

Section 163 BNSS substantially corresponds to Section 144 CrPC.

The basic preventive mechanism has been retained:

• both provisions empower specified Magistrates to issue urgent preventive orders;
• both concern nuisance and apprehended danger;
• both permit directions concerning acts and property;
• both recognise emergency situations in which an order may be made without prior notice;
• both impose limits on the duration of the order.

The principal change is the statutory renumbering resulting from the replacement of the CrPC by the BNSS.

The corresponding provision should therefore be remembered as:

Section 144 CrPC = Section 163 BNSS

The substantive principles developed by courts under Section 144 CrPC remain relevant where the corresponding language and legal framework have been substantially retained.

Important Distinctions

Section 163 BNSS and Section 162 BNSS

Section 162 empowers a Magistrate to prohibit the repetition or continuance of a public nuisance.

Section 163 is broader in its preventive operation and addresses urgent cases involving nuisance or apprehended danger, including dangers to human life, health or safety and apprehended riot or affray.

Preventive Order and Punishment

A Section 163 order is preventive, not punitive.

Its purpose is to prevent an anticipated danger or disturbance. It does not itself determine that the person against whom the order is made is guilty of a criminal offence.

Section 163 BNSS and Preventive Detention

Section 163 is not itself a preventive detention provision.

It principally enables the Magistrate to regulate conduct or property through a preventive order. Preventive detention is governed by a different constitutional and statutory framework.

Common Confusions

Is Section 163 the same as old Section 144 CrPC?

Broadly, yes.

Section 163 BNSS substantially corresponds to Section 144 CrPC and carries forward its central preventive framework.

Can a Section 163 order be issued without hearing the affected person?

Yes, in appropriate emergency circumstances.

The provision permits an ex parte order where immediate action is necessary or circumstances do not allow sufficient time for service of notice.

Is every Section 163 order valid for six months?

No.

The ordinary maximum period is two months. Extension by the State Government can permit continuation subject to the statutory maximum of six months from the original order.

Is Section 163 intended to punish people?

No.

It is a preventive provision designed to avert danger, nuisance, disturbance of public tranquillity, riot or affray.

Can a Section 163 order be challenged?

Yes.

The BNSS provides a mechanism for an affected person to apply for rescission or alteration of the order. Judicial remedies may also be available where the order is legally defective or unconstitutional.

Example

Suppose a particular area is facing a serious and immediate threat of violence between two groups. The Executive Magistrate receives material indicating that a gathering at a specified location is likely to result in a riot or affray.

If the statutory requirements are satisfied and immediate prevention is necessary, the Magistrate may issue an order under Section 163 restricting specified conduct or regulating the relevant activity for the purpose of preventing the anticipated disturbance.

The order must remain within the authority granted by the BNSS and cannot be imposed merely on the basis of an unsupported apprehension.

Topic at a Glance

• Topic: Power to issue order in urgent cases of nuisance or apprehended danger
• BNSS Section: Section 163
• Corresponding CrPC provision: Section 144 CrPC
• Nature: Preventive and emergency
• Authority: District Magistrate, Sub-divisional Magistrate or specially empowered Executive Magistrate
• Purpose: Prevention of nuisance, danger, disturbance of public tranquillity, riot or affray
• Form: Written order stating material facts
• Emergency power: Ex parte order may be issued where statutory conditions are satisfied
• Ordinary maximum duration: Two months
• Maximum duration with State Government extension: Six months from the original order
• Important constitutional provisions: Articles 19 and 21
• Important cases: Madhu Limaye v. Sub-Divisional Magistrate, Babulal Parate v. State of Maharashtra, Anuradha Bhasin v. Union of India

Quick Revision

• Section 163 BNSS deals with urgent cases of nuisance or apprehended danger.
• It substantially corresponds to Section 144 CrPC.
• It is a preventive, not punitive, provision.
• The power is exercised by specified Executive Magistrates.
• There must be sufficient ground for proceeding under the section.
• Immediate prevention or speedy remedy must be desirable.
• The order must be in writing and state the material facts.
• The order may direct a person to abstain from an act or to take measures concerning property.
• The provision covers danger to human life, health and safety, as well as disturbance of public tranquillity, riot and affray.
• An ex parte order may be issued in appropriate emergency circumstances.
• An order ordinarily operates for a maximum of two months.
• The State Government may extend it, subject to a maximum overall period of six months.
• An affected person may seek rescission or alteration of the order.
• Constitutional rights affected by such orders must be considered, particularly rights under Article 19 and Article 21.
• Leading Section 144 CrPC decisions remain relevant where the BNSS provision substantially retains the earlier framework.

ALSO READ: Section 162 – Magistrate may prohibit repetition or continuance of public nuisance

Conclusion

Section 163 of the BNSS provides the Executive Magistracy with an important preventive power for situations requiring immediate intervention. Its purpose is to prevent imminent nuisance, danger, public disorder, riot or affray rather than to punish past conduct. Because the power can substantially affect individual freedoms, its exercise must remain within the statutory conditions, duration limits and constitutional safeguards prescribed by law.