Section 160 of BNSS, 2023 — Procedure on Order Being Made Absolute and Consequences of Disobedience

Introduction

Section 160 of the Bharatiya Nagarik Suraksha Sanhita, 2023 lays down the procedure to be followed when an order made by a Magistrate under Section 155 or Section 157 becomes absolute.

Once the order becomes absolute, the Magistrate must notify the person against whom the order was made and require that person to perform the directed act within the specified time. The section also provides consequences where the person fails to comply, including execution of the required act by the Magistrate and recovery of the resulting costs.

The provision is therefore an important enforcement mechanism for orders relating to the removal or prevention of public nuisance.

Meaning of Section 160

Section 160 deals with what happens after a conditional order becomes absolute.

The section establishes three principal consequences:

1. The person concerned must be given notice that the order has become absolute.
2. The person must be required to comply with the order within the time specified in the notice.
3. If the person fails to comply, the Magistrate may cause the required act to be performed and recover the expenses.

The section also provides protection for acts done in good faith under it by stating that no suit shall lie in respect of such acts.

Statutory Basis

Section 160, BNSS, 2023 — Procedure on order being made absolute and consequences of disobedience

Sub-section (1)

When an order has been made absolute under Section 155 or Section 157, the Magistrate shall:

• give notice of the order becoming absolute to the person against whom the order was made;
• require that person to perform the act directed by the order;
• specify a time within which the act must be performed; and
• inform the person that disobedience will make the person liable to the penalty provided under Section 223 of the Bharatiya Nyaya Sanhita, 2023.

Sub-section (2)

If the required act is not performed within the prescribed time, the Magistrate may cause the act to be performed and recover the costs of doing so.

The section provides specific methods for recovering those costs, including sale or distress and sale of property in the circumstances specified by the provision.

Sub-section (3)

No suit shall lie in respect of anything done in good faith under Section 160.

Object and Purpose

The main purpose of Section 160 is to ensure that an order made absolute by the Magistrate is effectively implemented.

A Magistrate’s order concerning the removal or prevention of a public nuisance would have little practical value if there were no mechanism for enforcing compliance.

Section 160 therefore provides:

• notice of the final order;
• an opportunity and time for compliance;
• a statutory consequence for disobedience;
• a mechanism for carrying out the required act;
• recovery of the costs incurred in carrying out the act; and
• protection for acts done in good faith under the section.

When Does Section 160 Apply?

Section 160 applies when an order has been made absolute under Section 155 or Section 157.

Therefore, the provision operates after the relevant proceedings have resulted in the Magistrate making the order absolute.

It is not the initial procedure for making the conditional order.

Procedure under Section 160

Step 1: Order Becomes Absolute

The order must first have been made absolute under Section 155 or Section 157.

Step 2: Notice to the Person Concerned

The Magistrate must give notice to the person against whom the order was made.

The notice informs the person that the order has become absolute.

Step 3: Direction to Perform the Required Act

The Magistrate must require the person to perform the act directed by the order.

The act and manner of compliance are based on the order that has become absolute.

Step 4: Time for Compliance

The Magistrate must fix a time within which the person is required to comply.

Step 5: Warning Regarding Disobedience

The notice must inform the person that disobedience will make the person liable to the penalty provided under Section 223 of the Bharatiya Nyaya Sanhita, 2023.

Step 6: Failure to Comply

If the person does not perform the required act within the specified time, the Magistrate may cause the act to be performed.

Step 7: Recovery of Costs

The Magistrate may recover the costs incurred in performing the act through the methods specified in Section 160.

Consequences of Disobedience

Section 160 provides both criminal and enforcement consequences.

Criminal Consequence

The person must be informed that disobedience makes them liable to the penalty provided under Section 223 BNS.

Section 223 BNS deals with disobedience to an order duly promulgated by a public servant.

The applicable punishment depends upon the consequences of the disobedience.

Where the disobedience causes or tends to cause obstruction, annoyance, injury or risk thereof, Section 223(a) provides for simple imprisonment up to six months, or fine up to two thousand five hundred rupees, or both.

Where the disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, Section 223(b) provides for imprisonment of either description up to one year, or fine up to five thousand rupees, or both.

Magistrate’s Power to Carry Out the Required Act

If the person does not comply within the time fixed in the notice, the Magistrate may cause the required act to be performed.

This is an important enforcement mechanism.

For example, if an order requires the removal of an obstruction or dangerous structure and the person fails to carry out the required act, the Magistrate may arrange for the act to be performed instead.

Recovery of Costs

Section 160 allows the Magistrate to recover the costs incurred in carrying out the required act.

The section provides specific methods of recovery.

Sale of Property Removed by the Order

Where applicable, the costs may be recovered through the sale of any building, goods or other property removed by the Magistrate’s order.

Distress and Sale of Movable Property

The Magistrate may also recover the costs through the distress and sale of other movable property belonging to the person.

Such property may be situated within or outside the Magistrate’s local jurisdiction, subject to the procedure prescribed by Section 160.

Property Outside the Magistrate’s Jurisdiction

Where the property is outside the Magistrate’s local jurisdiction, the order must be endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.

The endorsed order then authorises attachment and sale of the property.

Protection for Acts Done in Good Faith

Section 160(3) provides that no suit shall lie in respect of anything done in good faith under this section.

This provision protects persons acting under the authority of Section 160 when their actions are undertaken in good faith.

The protection is limited to acts done in good faith under the statutory provision.

Powers and Duties of the Magistrate

Duties

The Magistrate shall:

• give notice when the order has become absolute;
• require the person concerned to perform the directed act within the specified time;
• inform the person about the consequence of disobedience under Section 223 BNS.

Powers

The Magistrate may:

• cause the required act to be performed if the person fails to comply;
• recover the costs of performing the act through the methods provided in Section 160;
• authorise attachment and sale of property situated outside the Magistrate’s jurisdiction through the prescribed endorsement procedure.

The distinction between “shall” and “may” is significant. Notice and the specified information are mandatory requirements, whereas the enforcement measures following non-compliance are expressed as discretionary powers.

Relationship with Section 152

Section 152 provides for a conditional order for removal of nuisance.

Section 160 operates at a later stage, after the order has become absolute.

The overall statutory scheme can therefore be understood as follows:

• Section 152 deals with the conditional order.
• Section 154 deals with the person’s obligation to obey the order or appear and show cause.
• Sections 155 and 157 deal with the subsequent procedure concerning the order.
• Section 160 deals with enforcement after the order becomes absolute.

Relationship with Section 223 BNS

Section 160 BNSS specifically refers to the penalty under Section 223 of the Bharatiya Nyaya Sanhita, 2023.

Thus, the BNSS provides the procedural mechanism, while the BNS provision supplies the criminal penalty for the specified disobedience.

Section 223 BNS covers disobedience to an order duly promulgated by a public servant. The provision distinguishes between disobedience causing or tending to cause obstruction, annoyance or injury and disobedience causing or tending to cause more serious consequences such as danger to human life, health or safety, riot or affray.

Important Distinctions

Conditional Order and Absolute Order

A conditional order is an order initially made by the Magistrate under the relevant statutory provision, requiring the person to perform a specified act or show cause against the order.

An absolute order is the order that takes effect after the statutory procedure has been completed and the Magistrate makes the order final.

Section 160 applies when the order has become absolute.

Disobedience and Enforcement

Disobedience can result in liability under Section 223 BNS.

Independently, Section 160 also permits the Magistrate to cause the required act to be performed and recover the costs.

Therefore, Section 160 provides an enforcement mechanism in addition to the criminal consequence for disobedience.

Section 160 BNSS and Section 223 BNS

Section 160 BNSS is procedural.

Section 223 BNS defines the criminal consequence for disobedience to an order duly promulgated by a public servant.

The two provisions therefore operate together but serve different purposes.

BNSS and CrPC

Section 160 BNSS corresponds to Section 141 of the Code of Criminal Procedure, 1973.

The core framework has been retained under the BNSS.

Under the CrPC, Section 141 dealt with the procedure after an order was made absolute and the consequences of disobedience.

Under BNSS, Section 160 continues this mechanism while expressly referring to the penalty provided under Section 223 of the Bharatiya Nyaya Sanhita, 2023.

The important structural change is therefore the replacement of the corresponding penal reference under the earlier criminal law framework with the relevant BNS provision.

Example

Suppose a Magistrate makes an order requiring a person to remove an obstruction that constitutes a public nuisance.

After the statutory proceedings, the order becomes absolute.

The Magistrate gives notice to the person and requires the obstruction to be removed within the specified period. The notice also informs the person about the consequences of disobedience under Section 223 BNS.

If the person does not remove the obstruction within the specified time, the Magistrate may arrange for its removal and recover the costs in accordance with Section 160.

Important BNSS Provisions

• Section 152: Conditional order for removal of nuisance.
• Section 154: Person to whom order is addressed to obey or show cause.
• Section 155: Penalty or procedure relating to certain orders.
• 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 and related matters.
• 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.

Topic at a Glance

• Topic: Procedure on order being made absolute and consequences of disobedience
• BNSS Section: Section 160
• Nature: Procedural and enforcement provision
• Applies when: An order becomes absolute under Section 155 or Section 157
• First requirement: Magistrate must give notice to the person concerned
• Compliance: Person must perform the directed act within the specified time
• Disobedience: Person is liable to the penalty provided under Section 223 BNS
• Failure to comply: Magistrate may cause the required act to be performed
• Costs: Magistrate may recover the costs of performing the act
• Good faith protection: No suit lies for anything done in good faith under Section 160
• CrPC counterpart: Section 141 CrPC
• Related BNS provision: Section 223 BNS

Common Confusions

Does Section 160 apply before an order becomes absolute?

No.

Section 160 applies when the order has been made absolute under Section 155 or Section 157.

Is notice to the person mandatory?

Yes.

Section 160(1) states that the Magistrate shall give notice to the person against whom the order was made.

Does the person receive time to comply?

Yes.

The Magistrate must fix a time within which the person is required to perform the act directed by the order.

What happens if the person does not comply?

The person may face the penalty provided under Section 223 BNS. In addition, the Magistrate may cause the required act to be performed and recover the costs in accordance with Section 160.

Can the Magistrate recover the costs of carrying out the required act?

Yes.

Section 160(2) permits recovery of the costs through the methods specified in the provision.

Does Section 160 provide protection for acts done in good faith?

Yes.

Section 160(3) states that no suit shall lie in respect of anything done in good faith under the section.

Quick Revision

• Section 160 BNSS deals with the procedure after an order becomes absolute and the consequences of disobedience.
• It applies when an order has become absolute under Section 155 or Section 157.
• The Magistrate shall give notice to the person against whom the order was made.
• The person must be required to perform the directed act within the time specified in the notice.
• The person must be informed about the penalty under Section 223 BNS for disobedience.
• If the person fails to comply, the Magistrate may cause the required act to be performed.
• The costs of performing the act may be recovered through the methods specified in Section 160.
• Property outside the Magistrate’s jurisdiction may be attached and sold through the prescribed endorsement procedure.
• No suit lies for anything done in good faith under Section 160.
• Section 160 BNSS corresponds to Section 141 CrPC.
• Section 223 BNS provides the criminal penalty for the relevant disobedience.

ALSO READ: Section 159 – Power of Magistrate to furnish written instructions, etc.

Conclusion

Section 160 of the Bharatiya Nagarik Suraksha Sanhita, 2023 ensures that an order made absolute by a Magistrate does not remain merely declaratory. It establishes a clear enforcement mechanism by requiring notice and an opportunity for compliance, while providing consequences for disobedience.

Where compliance does not occur, the Magistrate may cause the required act to be performed and recover the resulting costs. The provision therefore gives practical effect to orders made in proceedings concerning public nuisance and related matters.