Sections 129–132 CrPC vs Sections 148–151 BNSS — Dispersal of Unlawful Assemblies

In India, Sections 148 to 151 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Sections 129 to 132 of the Code of Criminal Procedure, 1973 (CrPC) from 1 July 2024. The District Magistrate, or an Executive Magistrate he authorises, now calls in the armed forces, and "any person" (not only "any male person") may be required to assist.

At a glance

These provisions form Part A ("Unlawful assemblies") of Chapter XI of the BNSS, "Maintenance of public order and tranquillity", which was Chapter X of the CrPC. They create no offence, so neither First Schedule lists them. The offences of remaining in an assembly after a command to disperse are in Section 189 of the Bharatiya Nyaya Sanhita, 2023 (BNS); common-object liability is on the Section 149 IPC vs Section 190 BNS page.

What changed

Substantive changes

• Modified — Section 149(1) (CrPC 130(1)), who calls in the armed forces: "the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces" becomes "the District Magistrate or any other Executive Magistrate authorised by him, who is present, may cause it to be dispersed by the armed forces". The test is no longer rank among the Magistrates on the spot; on a reading of the text, a Magistrate other than the District Magistrate needs the District Magistrate's authorisation.
• Expanded — Section 148(2) (CrPC 129(2)), who may be required to assist: "may require the assistance of any male person, not being an officer or member of the armed forces and acting as such" becomes "may require the assistance of any person, not being an officer or member of the armed forces and acting as such".

Drafting changes

• Minor edit — Section 149(1), opening words: "If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security" becomes "If any assembly referred to in sub-section (1) of section 148 cannot otherwise be dispersed, and it is necessary for the public security". The cross-reference to Section 148(1) makes explicit which assemblies are meant.
• Minor edit — Section 149(2): "as the Magistrate may direct" becomes "as the Executive Magistrate may direct". Section 149(3), on using "as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly", is unchanged.
• Identical — Section 148(1) and Section 150: the command to disperse, and the armed force officer's power, are carried over word for word.
• Minor edit — Section 151 (CrPC 132): the heading "Protection against prosecution for acts done under preceding sections" becomes "... under sections 148, 149 and 150"; cross-references change from Sections 129 to 131 to Sections 148 to 150; and in the definition in Section 151(3)(a), "the military, naval and air forces" becomes "the army, naval and air forces, operating as land forces". The sanction rule, the four good-faith immunities and the definitions of "officer" and "member" are otherwise unchanged.

Statutory text (relevant extract)

Extract, Section 130(1) CrPC (repealed from 1 July 2024):

If any such assembly cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank who is present may cause it to be dispersed by the armed forces.

Extract, Section 149(1) BNSS:

If any assembly referred to in sub-section (1) of section 148 cannot otherwise be dispersed, and it is necessary for the public security that it should be dispersed, the District Magistrate or any other Executive Magistrate authorised by him, who is present, may cause it to be dispersed by the armed forces.

Extract, Section 151(1) BNSS:

No prosecution against any person for any act purporting to be done under section 148, section 149 or section 150 shall be instituted in any Criminal Court except— (a) with the sanction of the Central Government where such person is an officer or member of the armed forces; (b) with the sanction of the State Government in any other case.

How it works — the steps of dispersal

1. Which assemblies (Section 148(1)): "any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace". An unlawful assembly is defined in Section 189(1) BNS by its common object; its Explanation says an assembly "which was not unlawful when it assembled, may subsequently become an unlawful assembly".
2. Command (Section 148(1)): any Executive Magistrate, the officer in charge of a police station or, in that officer's absence, any police officer "not below the rank of a sub-inspector" may command the assembly to disperse; "it shall thereupon be the duty of the members of such assembly to disperse accordingly".
3. Civil force (Section 148(2)): if the assembly does not disperse on command, or without a command "conducts itself in such a manner as to show a determination not to disperse", the Magistrate or police officer may disperse it by force, require the assistance of any person, and arrest and confine its members "in order to disperse such assembly or that they may be punished according to law".
4. Armed forces on requisition (Section 149): if the assembly "cannot otherwise be dispersed" and dispersal is "necessary for the public security", the District Magistrate or an authorised Executive Magistrate who is present may requisition an officer commanding armed forces. The officer obeys "in such manner as he thinks fit" but must use "as little force, and do as little injury to person and property, as may be consistent" with dispersal and arrest (Section 149(3)).
5. Armed forces without a Magistrate (Section 150): only where public security is "manifestly endangered" and "no Executive Magistrate can be communicated with"; the officer must communicate with a Magistrate as soon as practicable and then obey his instructions.
6. Protection (Section 151): prosecution needs Government sanction; good-faith acts of Magistrates, police officers, persons assisting on requisition and armed force officers, and acts of members of the armed forces in obedience to orders they were bound to obey, are not offences (Section 151(2)).

What this means in practice

For the police and Executive Magistrates

• Give, and record, the command to disperse before using force, unless the assembly's conduct already shows "a determination not to disperse" (Section 148(2)). Remaining after a lawful command is itself an offence under Section 189(3) or (5) BNS, which makes the fact of the command a matter of proof.
• Calling in the armed forces now turns on the District Magistrate. On a reading of Section 149(1), an Executive Magistrate who is present but not the District Magistrate should hold that officer's authorisation before requisitioning the forces; the Section does not say in what form the authorisation is given.
• The requisitioned officer, not the Magistrate, decides the manner of dispersal, subject to the minimum-force rule in Section 149(3).

For a person injured, or an advocate considering a complaint

• A complaint against an officer for force used in dispersal meets the sanction bar in Section 151(1) only if the act purported to be done under Sections 148 to 150. Nagraj (below) sets out what the accused must show for the bar to apply, and holds that a complaint instituted without the required sanction is void.
• Section 151(2) protects acts done "in good faith"; the bar to prosecution and the good-faith immunity are separate questions.
• Where a crowd is dispersed under a prohibitory order, see Section 144 CrPC vs Section 163 BNSS; the Ramlila Maidan judgment (below) discusses how such an order and dispersal interact.

Judgments that still matter

Nagraj v. State of Mysore, [1964] 3 S.C.R. 671 (1963 INSC 140) — 8 May 1963. A Sub-Inspector who fired his revolver while surrounded by a crowd was committed for trial on a private complaint; the Sessions Judge sought quashing for want of sanction. Raghubar Dayal J., for a Bench with K. Subba Rao and J.R. Mudholkar JJ., construing Section 132 of the Code of Criminal Procedure, 1898, held that to get its benefit the accused has to show four things: an unlawful assembly, or an assembly of five or more persons likely to cause a disturbance of the public peace; a command to disperse; that the assembly did not disperse or, without a command, "its conduct had shown a determination not to disperse"; and "that in the circumstances he had used force" against its members (p. 683). The accused must establish these facts as he would any exception pleaded in defence (pp. 683–684). If the section applies, the proceedings are void and the only order is that "the proceedings be dropped and the complaint is rejected" (p. 685). The appeal was dismissed (p. 685). The judgment construes the 1898 Code; on a reading of the text, Sections 148(1)–(2) and 151(1) BNSS use the same elements the Court listed.

In Re: Ramlila Maidan Incident Dt. 4/5.06.2011 v. Home Secretary, Union of India & Ors., [2012] 4 S.C.R. 971 (2012 INSC 103) — 23 February 2012. In a suo motu writ petition on the police action at Ramlila Maidan, Swatanter Kumar J. said that one consequence of an order under Section 144 CrPC "would be the dispersement of an unlawful assembly and, if necessitated, by using permissible force", referring to the powers of arrest and confinement "in terms of Section 129 Cr.P.C." (para 49, pp. 1027–1028). In a supplementing opinion agreeing with those findings and concurring in the directions, Dr. B.S. Chauhan J. found that the sleeping crowd was dispersed by force "without being preceded by an announcement", giving "no time in a reasonable way to the assembly to disperse" (para 37), and that a sleeping crowd "cannot be included within the bracket of an unlawful category unless there is sufficient material to brand it as such" (para 39). The operative words of Section 148 on the command to disperse are unchanged, so on a reading of the text these observations bear on dispersal under the BNSS.

No Supreme Court judgment construing Sections 148 to 151 BNSS was found.

Which law applies to your case

Under Section 531(2)(a) BNSS, any "appeal, application, trial, inquiry or investigation" pending immediately before 1 July 2024 is continued under the CrPC "as if this Sanhita had not come into force". On a reading of that text, a prosecution already pending on that date for force used under Sections 129 to 131 CrPC continues under the CrPC, including its sanction rule in Section 132; a dispersal on or after 1 July 2024 is governed by Sections 148 to 151 BNSS. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 129 CrPC? Section 148 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 129 CrPC from 1 July 2024. Any Executive Magistrate, the officer in charge of a police station or, in his absence, a police officer not below the rank of sub-inspector may command an unlawful assembly, or an assembly of five or more persons likely to disturb the public peace, to disperse.

Who can call in the armed forces to disperse an assembly under the BNSS? Under Section 149(1) BNSS, the District Magistrate or any other Executive Magistrate authorised by him, who is present, may cause an assembly to be dispersed by the armed forces if it cannot otherwise be dispersed and its dispersal is necessary for the public security. Section 130(1) CrPC gave this power to the Executive Magistrate of the highest rank who was present.

Can the police require ordinary citizens to help disperse an assembly? Yes. Section 148(2) BNSS lets the Executive Magistrate or police officer require the assistance of any person, not being an officer or member of the armed forces acting as such, to disperse the assembly and, if necessary, arrest and confine its members. Section 129(2) CrPC referred to any male person.

Can an army officer disperse an assembly without a Magistrate? Under Section 150 BNSS, when public security is manifestly endangered and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse the assembly with the forces under his command. Once it becomes practicable to communicate with an Executive Magistrate, he must do so and obey the Magistrate's instructions on whether to continue.

Is sanction needed to prosecute a police officer for force used in dispersing a crowd? Section 151(1) BNSS bars any Criminal Court from instituting a prosecution for an act purporting to be done under Section 148, 149 or 150 except with the sanction of the Central Government, for an officer or member of the armed forces, or of the State Government in any other case. Section 151(2) adds that good-faith acts under those sections are not offences.

What must an accused officer show to claim the sanction bar? In Nagraj v. State of Mysore ([1964] 3 S.C.R. 671), construing the 1898 Code, the Supreme Court said the accused must show an unlawful assembly or an assembly of five or more persons likely to disturb the public peace, a command to disperse, failure to disperse or conduct showing a determination not to disperse, and use of force against its members. If the bar applies, the proceedings are void and the complaint is to be rejected.

Is it an offence to stay in an assembly after it is ordered to disperse? Yes. Under Section 189(3) of the Bharatiya Nyaya Sanhita, 2023, joining or continuing in an unlawful assembly knowing it has been commanded in the manner prescribed by law to disperse is punishable with up to two years, or fine, or both. Under Section 189(5), knowingly joining or continuing in an assembly of five or more persons likely to disturb the public peace after it has been lawfully commanded to disperse is punishable with up to six months, or fine, or both.

Which law applies to a dispersal that took place before 1 July 2024? Section 531(2)(a) BNSS provides that any appeal, application, trial, inquiry or investigation pending immediately before 1 July 2024 continues under the CrPC as if the Sanhita had not come into force. On a reading of that text, a prosecution already pending on that date for acts done under Sections 129 to 131 CrPC continues under the CrPC, including its Section 132.

Related

• Section 149 IPC vs Section 190 BNS — Unlawful Assembly and Common Object
• Section 144 CrPC vs Section 163 BNSS — Prohibitory Orders
• Sections 20–23 CrPC vs Sections 14–17 BNSS — Executive Magistrates
• Sections 106–110 CrPC vs Sections 125–129 BNSS — Security for Keeping the Peace
• Section 197 CrPC vs Section 218 BNSS — Sanction for Prosecution of Public Servants
• CrPC to BNSS master comparison table

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Chapter XI heading, Sections 148 to 151, 163(1) and 531(2)(a).
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Section 189.
• Code of Criminal Procedure, 1973 (India Code text): Chapter X heading, Sections 129 to 132.
• Judgments read in full text: Nagraj v. State of Mysore (1964_3_671_685_EN.md, with the report PDF); In Re: Ramlila Maidan Incident v. Home Secretary, Union of India (2012_4_971_1152_EN.md).

This page explains the statutory text and the judgments cited as they stand. It is not legal advice; for a specific case, consult an advocate.