Section 162 of BNSS, 2023 — Magistrate May Prohibit Repetition or Continuance of Public Nuisance

Introduction

Section 162 of the Bharatiya Nagarik Suraksha Sanhita, 2023 empowers certain Magistrates to prevent the repetition or continuance of a public nuisance.

The provision is preventive in nature. Where a Magistrate has jurisdiction over a public nuisance and considers it necessary to prevent the nuisance from being repeated or continued, the Magistrate may issue an order directing the person responsible for the nuisance, or any person who is causing, continuing, or repeating it, to discontinue or refrain from repeating it.

Meaning of Section 162

Section 162 enables a Magistrate to take preventive action against a public nuisance.

The provision is concerned with two situations:

1. Repetition of a public nuisance — preventing the nuisance from occurring again.
2. Continuance of a public nuisance — preventing an existing nuisance from continuing.

The objective is to protect the public from the continued or repeated harmful activity.

Statutory Provision

Section 162, BNSS, 2023 — Magistrate may prohibit repetition or continuance of public nuisance

A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate or Deputy Commissioner of Police empowered by the State Government or 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.

Object and Purpose

The main purpose of Section 162 is prevention.

Instead of waiting for a public nuisance to be repeated or continued and then taking action, the provision allows the competent Magistrate to issue a preventive order.

The provision therefore seeks to:

• prevent the repetition of a public nuisance;
• prevent the continuation of an existing public nuisance;
• protect members of the public from the harmful effects of the nuisance; and
• provide a quick preventive remedy through an Executive Magistrate.

Nature of the Power

The power under Section 162 is preventive and discretionary.

The provision uses the expression “may order”, meaning that the Magistrate has discretion to issue an order when the circumstances justify preventive intervention.

It is not a provision for determining criminal guilt after a trial. Its immediate purpose is to stop or prevent the nuisance.

Who Can Exercise the Power?

The power under Section 162 may be exercised by:

• District Magistrate;
• Sub-divisional Magistrate;
• any other Executive Magistrate empowered by the State Government or District Magistrate; or
• Deputy Commissioner of Police empowered by the State Government or District Magistrate.

Therefore, the provision specifically identifies the authorities competent to issue the preventive order.

Essential Elements

1. There Must Be a Public Nuisance

The provision applies to a public nuisance.

The expression “public nuisance” is to be understood with reference to the Bharatiya Nyaya Sanhita, 2023 or any applicable special or local law.

2. The Authority Must Be Competent

The order can be issued only by an authority falling within the categories specified in Section 162.

3. The Order Must Be Preventive

The order must be directed towards preventing the repetition or continuance of the public nuisance.

4. The Order Is Directed Against a Person

The Magistrate may order any person not to repeat or continue the public nuisance.

The person against whom the order is issued must therefore be connected with the nuisance in a manner that makes the preventive direction relevant.

Repetition of Public Nuisance

“Repetition” refers to the occurrence of the nuisance again after it has previously occurred.

For example, if a person repeatedly creates a public obstruction or repeatedly engages in conduct constituting a public nuisance, the competent Magistrate may issue an order intended to prevent the conduct from being repeated.

The purpose is to prevent recurrence rather than wait for another instance of harm.

Continuance of Public Nuisance

“Continuance” refers to an existing nuisance that is still ongoing.

For example, if an activity is continuously causing a public nuisance, the Magistrate may direct the person responsible not to continue that activity.

The focus is therefore on bringing an existing nuisance to an end.

Scope of Section 162

Section 162 applies to public nuisances as defined under:

• the Bharatiya Nyaya Sanhita, 2023; or
• any special law; or
• any local law.

This makes the provision broader than a rule dealing only with public nuisances specifically created under the BNS.

Where another applicable law defines conduct as a public nuisance, Section 162 may operate in relation to that nuisance, subject to the statutory requirements.

Procedure

The basic operation of Section 162 can be understood as follows:

1. A public nuisance exists or is being repeated or continued.
2. A competent authority under Section 162 considers preventive action necessary.
3. The Magistrate identifies the person against whom the preventive direction should operate.
4. The Magistrate issues an order directing the person not to repeat or continue the public nuisance.
5. The person is required to comply with the order.
6. Any further legal consequences of disobedience arise under the applicable law.

Powers of the Magistrate

The competent Magistrate may:

• identify a public nuisance falling within the scope of the provision;
• issue a preventive order;
• direct a person not to repeat the nuisance;
• direct a person not to continue the nuisance.

The power is intended to prevent further public harm rather than punish past conduct.

Important Distinctions

Repetition and Continuance

Repetition means that the nuisance occurs again.

Continuance means that an existing nuisance continues.

Section 162 covers both situations.

Section 160 and Section 162

Section 160 deals with the enforcement of an order after it has become absolute and the consequences of disobedience.

Section 162 specifically empowers competent Magistrates to prohibit the repetition or continuance of a public nuisance.

Thus, Section 162 is primarily a preventive power, whereas Section 160 deals with enforcement following an order becoming absolute.

Section 161 and Section 162

Section 161 deals with an injunction pending inquiry where immediate measures are necessary to prevent imminent danger or serious injury to the public.

Section 162 deals specifically with prohibiting the repetition or continuance of a public nuisance.

The two provisions are both preventive but operate in different circumstances.

Public Nuisance and Private Nuisance

Section 162 concerns public nuisance.

It is not a general statutory provision for resolving every dispute involving a private nuisance between individual parties.

The nuisance must fall within the meaning provided by the applicable criminal, special or local law.

BNSS and CrPC

Section 162 BNSS corresponds to Section 143 of the Code of Criminal Procedure, 1973.

The basic principle has been retained under the BNSS: a competent Magistrate can order a person not to repeat or continue a public nuisance.

The BNSS provision updates the reference to the applicable substantive criminal law from the earlier statutory framework to the Bharatiya Nyaya Sanhita, 2023, while also retaining references to special and local laws.

Relationship with BNS and BSA

Section 162 is primarily a BNSS procedural provision.

The Bharatiya Nyaya Sanhita, 2023 (BNS) defines substantive criminal offences, including public nuisance-related offences.

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) provides the procedural mechanism through which the Magistrate can issue a preventive order.

The Bharatiya Sakshya Adhiniyam, 2023 (BSA) governs the law of evidence where evidentiary questions arise.

Therefore:

• BNS → defines the substantive offence/public nuisance;
• BNSS Section 162 → provides the preventive procedural power;
• BSA → governs applicable evidentiary questions.

Example

Suppose a person repeatedly conducts an activity in a public place that constitutes a public nuisance under the applicable law.

If the competent Magistrate considers that the nuisance should not be repeated or continued, the Magistrate may issue an order under Section 162 directing the person not to repeat or continue the nuisance.

The provision therefore allows preventive action without waiting for the nuisance to become a recurring or continuing source of public harm.

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: Magistrate may prohibit repetition or continuance of public nuisance
• BNSS Section: Section 162
• Nature: Preventive power
• Purpose: To prevent repetition or continuance of public nuisance
• Competent authorities: District Magistrate, Sub-divisional Magistrate, specified Executive Magistrates and empowered Deputy Commissioners of Police
• Subject: Public nuisance
• Source of definition: BNS, special law or local law
• Power: Magistrate may order a person not to repeat or continue the nuisance
• CrPC counterpart: Section 143 CrPC

Common Confusions

Is Section 162 applicable only to offences under the BNS?

No.

Section 162 expressly covers public nuisance as defined in the BNS or any special or local law.

Is Section 162 a punishment provision?

No.

Its primary purpose is preventive. It allows the competent Magistrate to prohibit repetition or continuance of a public nuisance.

Can any Magistrate issue an order under Section 162?

No.

The provision specifically identifies the competent authorities, including the District Magistrate, Sub-divisional Magistrate and other specified and empowered authorities.

Does Section 162 deal with both existing and future nuisance?

Yes.

It covers both:

• continuance of an existing public nuisance; and
• repetition of a public nuisance.

Is Section 162 the same as Section 161?

No.

Section 161 concerns an injunction pending inquiry where immediate measures are required to prevent imminent danger or serious injury to the public.

Section 162 specifically concerns prohibition of the repetition or continuance of public nuisance.

Quick Revision

• Section 162 BNSS deals with prohibition of repetition or continuance of public nuisance.
• It is a preventive provision.
• The power may be exercised by the District Magistrate, Sub-divisional Magistrate, specified Executive Magistrates and empowered Deputy Commissioners of Police.
• The nuisance may be one defined under the BNS, a special law or a local law.
• The Magistrate may order a person not to repeat or continue the public nuisance.
• Repetition means recurrence of the nuisance.
• Continuance means continuation of an existing nuisance.
• Section 162 is different from Section 161, which concerns injunction pending inquiry.
• Section 162 BNSS corresponds to Section 143 CrPC.
• The provision is primarily preventive rather than punitive.

ALSO READ: Section 161 – Injunction pending inquiry

Conclusion

Section 162 of the Bharatiya Nagarik Suraksha Sanhita, 2023 provides an important preventive remedy against public nuisance. It authorises specified Magistrates to order a person not to repeat or continue a public nuisance where such preventive action is necessary.

The provision covers public nuisances defined under the BNS as well as those arising under special or local laws. By empowering the Magistrate to prevent both the continuation and repetition of nuisance, Section 162 helps protect public safety, convenience and tranquillity.