Section 144 CrPC vs Section 163 BNSS — Prohibitory Orders in Urgent Cases of Nuisance or Apprehended Danger

In India, Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) replaced Section 144 of the Code of Criminal Procedure, 1973 (CrPC) on 1 July 2024. The power is textually almost unchanged; the real change is the penalty for disobedience, which moves from Section 188 IPC to Section 223 BNS with higher maximums.

At a glance

The CrPC First Schedule also classified both limbs of Section 188 IPC as cognizable, bailable and triable by any Magistrate.

What changed

• Minor edit — Section 163(1). "served in the manner provided by section 134" becomes "served in the manner provided by section 153". Section 153 BNSS, like Section 134 CrPC, requires service as for a summons, or proclamation if the order cannot be served.
• Identical — Sections 163(2) and (3). Ex parte orders "in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice"; orders against "a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area".
• Minor edit — Section 163(4). The two-month limit and the State Government's extension "not exceeding six months" are unchanged; the comma after "Provided that" is dropped.
• Minor edit — Sections 163(5) and (7). A comma is dropped in sub-section (5); in sub-section (7) the applicant appears "either in person or by an advocate" where Section 144(7) said "by pleader".
• No counterpart — Section 144A CrPC. Section 144A (District Magistrate's power to prohibit carrying arms in processions or mass drill with arms) was inserted by Section 16 of Act 25 of 2005, but the CrPC text records it as "date yet to be notified", and the Appendix lists Section 16 among the provisions excepted from S.O. 923(E). The BNSS has no equivalent provision.
• Modified — the penalty, Section 223 BNS (old Section 188 IPC). The offence is defined in the same words, now split into clauses (a) and (b), with the same Explanation and Illustration (a religious procession barred from a street). The maximums rise: clause (a) from one month or Rs. 200 to six months or Rs. 2,500; clause (b) from six months or Rs. 1,000 to one year or Rs. 5,000.
• Expanded — complaint requirement, Section 215(1)(a) BNSS (old Section 195(1)(a) CrPC). Cognizance still needs the written complaint of the public servant concerned or his administrative superior, and now also "some other public servant who is authorised by the concerned public servant so to do". The list becomes Sections 206 to 223 BNS, excluding Section 209.

Statutory text (relevant extract)

Extract, Section 144(4) CrPC (repealed from 1 July 2024):

(4) No order under this section shall remain in force for more than two months from the making thereof:

Extract, Section 163(1), (3) and (4) BNSS:

(1) In cases where, in the opinion of a District Magistrate, a Sub-divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 153, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, …

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof: Provided that if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months …

How it works — the conditions and steps

1. Who may act (s.163(1)). A District Magistrate, a Sub-divisional Magistrate, or any other Executive Magistrate specially empowered by the State Government. Judicial Magistrates have no power under this section.
2. Two threshold conditions. In the Magistrate's opinion there must be "sufficient ground for proceeding" and "immediate prevention or speedy remedy is desirable".
3. Purpose. The direction must be one the Magistrate considers "likely to prevent, or tends to prevent" obstruction, annoyance or injury to a person lawfully employed, danger to human life, health or safety, a disturbance of the public tranquillity, a riot or an affray.
4. Form. A written order stating the material facts, served as Section 153 provides. It may direct a person to abstain from an act, or to take order with property in his possession or management.
5. Notice. Ordinarily on notice; ex parte in an emergency or where notice cannot be served in time (s.163(2)).
6. Duration. At most two months, plus a State Government extension of up to six months from the date the order would have expired (s.163(4)).
7. Review. The Magistrate may rescind or alter the order on his own motion or on an aggrieved person's application; the State Government may do so for its extension. The applicant must get an early hearing, and a rejection must be reasoned in writing (s.163(5)-(7)).
8. Enforcement. Knowing disobedience is an offence under Section 223 BNS. The Explanation says the offender need not intend harm; it is enough that he knows of the order and that his disobedience "produces, or is likely to produce, harm". Cognizance requires the public servant's written complaint (s.215(1)(a) BNSS).

What this means in practice

For the Magistrate issuing the order

• State the material facts on the face of the order, confine it to a particular area or issue where possible, and choose the least intrusive measure: Anuradha Bhasin (paras 130, 140) says so, and holds (para 140) that "Repetitive orders" would be an abuse of power.
• Where rights have already been adjudicated by a civil court, Gulam Abbas says the power should ordinarily be exercised in aid of those rights and "against the wrong-doer rather than the wronged".
• Allow reasonable time to comply where the facts permit; Ramlila Maidan (para 187) holds that the section fixes no time for implementation, so a reasonable time applies.

For a person or organisation affected

• Apply to the Magistrate under Section 163(5) to rescind or alter the order; Section 163(7) guarantees an early hearing, in person or through an advocate, and written reasons for any rejection.
• The order is open to challenge by revision (Section 438 BNSS treats Executive Magistrates as inferior courts for revision) and, where a fundamental right is infringed, in writ proceedings (Gulam Abbas).
• Anuradha Bhasin (para 152(a)) directed the State in that case to publish all orders in force and future orders so that affected persons could challenge them.

For the accused in a disobedience case

• Check that the prosecution began on the written complaint of the public servant concerned (or his superior or an authorised public servant) as Section 215(1)(a) BNSS requires.
• On a reading of Article 20(1) of the Constitution, the higher Section 223 BNS maximums cannot be imposed for disobedience committed before 1 July 2024.

Judgments that still matter

Gulam Abbas v. State of U.P., [1982] 1 S.C.R. 1077 (1981 INSC 188) — 3 November 1981. A Bench of three Judges (V.D. Tulzapurkar, D.A. Desai and A.P. Sen JJ.; judgment by Tulzapurkar J.) held that, under the 1973 Code's separation of executive and judicial Magistrates, an order under Section 144 is "an executive order passed in performance of an executive function" and is amenable to writ jurisdiction under Article 32 or 226 if it infringes a fundamental right. It observed that revision lies under Section 397 CrPC. Giving guidance to local authorities, it said the power may temporarily override private rights but does not authorise adjudicating civil disputes or title, and that "the Magistrate's action should be directed against the wrong-doer rather than the wronged". The report shows no paragraph numbers. Section 163 BNSS repeats the words of Section 144, and Section 438 BNSS repeats the revision Explanation, so on a reading of the text the reasoning carries over.

In Re: Ramlila Maidan Incident Dt. 4/5.06.2011, [2012] 4 S.C.R. 971 (2012 INSC 103) — 23 February 2012. In the leading judgment of Swatanter Kumar J. (B.S. Chauhan J. concurring separately), the Court listed the requirements of Section 144: an executive power, sufficient ground, a need for immediate prevention or speedy remedy, and a written order stating material facts, served on the person concerned (para 46). "Existence of sufficient ground is the sine qua non" for the power, and the perception of threat "should be real and not imaginary" (para 184). Because the section fixes no time for implementation, a reasonable time applies (para 187); the "undue haste" of police in enforcing the order at night on a sleeping crowd produced the incident (para 190).

Anuradha Bhasin v. Union of India, [2020] 1 S.C.R. 812 (2020 INSC 31) — 10 January 2020. A Bench of three Judges (N.V. Ramana, R. Subhash Reddy and B.R. Gavai JJ.; judgment by Ramana J.) summarised the law in para 140: the power is remedial and preventive and may be used on an apprehension of danger that is in the nature of an "emergency"; it "cannot be used to suppress legitimate expression of opinion or grievance or exercise of any democratic rights"; the order must state material facts to enable judicial review; the Magistrate must apply proportionality and "the least intrusive measure"; and "Repetitive orders under Section 144, Cr.P.C. would be an abuse of power". It recorded that the seven-Judge Bench in Madhu Limaye upheld the section's validity (para 111) and that an order may be directed to the public generally (para 124).

Which law applies to your case

Section 531(2)(b) BNSS deems orders made under the CrPC and in force immediately before 1 July 2024 to have been made under the corresponding BNSS provisions; on a reading of that clause, a Section 144 order running on that date continued as a Section 163 order until its own limit expired. An application to rescind that was pending on that date continues under the CrPC (Section 531(2)(a)). For disobedience before 1 July 2024, Section 358(2) BNS lets a proceeding be continued and a penalty imposed under Section 188 IPC "as if that Code had not been repealed"; on a reading of Article 20(1), the higher Section 223 maximums apply only to later conduct. See which law applies to an offence before 1 July 2024.

Frequently asked questions

What is the BNSS equivalent of Section 144 CrPC? Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023 replaces Section 144 CrPC from 1 July 2024. It lets a District Magistrate, a Sub-divisional Magistrate or another Executive Magistrate specially empowered by the State Government issue a written order directing a person to abstain from an act, or to take order with property, where immediate prevention or speedy remedy is desirable.

Has anything changed in the prohibitory-order power under the BNSS? Very little. Section 163 BNSS repeats Section 144 CrPC except that the service cross-reference becomes Section 153, two commas are dropped, and a person applying to rescind the order may appear "by an advocate" instead of "by pleader". The grounds, the ex parte power, the two-month limit and the six-month State extension are unchanged.

How long can a Section 163 BNSS order last? Under Section 163(4) BNSS no order remains in force for more than two months from the making of it. The State Government may, by notification, extend a Magistrate's order for a further period not exceeding six months from the date it would otherwise have expired, if it considers this necessary to prevent danger to human life, health or safety or a riot or affray.

Can a Section 163 order apply to the whole public? Yes. Section 163(3) BNSS allows the order to be directed to a particular individual, to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area. In Anuradha Bhasin v. Union of India (2020 INSC 31, para 124) the Supreme Court noted that such an order can be passed against an individual or the public in general.

What is the punishment for disobeying a prohibitory order now? Section 223 BNS replaces Section 188 IPC. Disobedience that causes or tends to cause obstruction, annoyance or injury to a person lawfully employed is punishable with simple imprisonment up to six months, or fine up to Rs. 2,500, or both (Section 188 IPC: one month or Rs. 200). Where it causes or tends to cause danger to human life, health or safety, or a riot or affray, the maximum is one year or Rs. 5,000 (Section 188 IPC: six months or Rs. 1,000).

Can the police register an FIR and prosecute disobedience of a Section 163 order directly? Section 223 BNS is cognizable and bailable, triable by any Magistrate, under the BNSS First Schedule. But Section 215(1)(a) BNSS bars a court from taking cognizance of an offence under Sections 206 to 223 BNS (except Section 209) except on the written complaint of the public servant concerned, a public servant to whom he is administratively subordinate, or one he has authorised. Section 195(1)(a) CrPC had the same bar for Section 188 IPC, without the authorised-servant words.

How can a prohibitory order be challenged? Section 163(5) BNSS lets any person aggrieved apply to the Magistrate to rescind or alter the order, and Section 163(7) requires an early hearing and written reasons if the application is rejected. The Supreme Court held in Gulam Abbas v. State of U.P. ([1982] 1 S.C.R. 1077) that a Section 144 CrPC order is an executive order amenable to writ jurisdiction if it infringes a fundamental right, and noted that revision also lies; the revision power is now Section 438 BNSS.

Does an old Section 144 order continue after 1 July 2024? Section 531(2)(b) BNSS deems orders made under the CrPC and in force immediately before 1 July 2024 to have been made under the corresponding BNSS provisions. On a reading of that clause, a Section 144 order still in force on that date continued as if made under Section 163 BNSS, subject to its own two-month or extended limit.

Related

• Prohibitory orders: Section 144 CrPC now BNSS 163
• Hate speech and promoting enmity: BNS 196 vs IPC 153A
• Fake news and false statements: BNS 353 and 197 vs IPC 505
• Section 482 CrPC — inherent powers of the High Court
• Offence before 1 July 2024 — which law applies
• CrPC to BNSS master table
• Sections 172–180 IPC vs Sections 206–215 BNS — Contempt of the Lawful Authority of Public Servants
• Sections 182–188 IPC vs Sections 217–223 BNS — False Information, Obstruction and Disobedience of Public Servants
• Sections 268, 290–291 IPC vs Sections 270, 292–293 BNS — Public Nuisance
• Sections 20–23 CrPC vs Sections 14–17 BNSS — Executive Magistrates
• Sections 195, 198 and 198A CrPC vs Sections 215, 219 and 220 BNSS — Restrictions on Prosecution: Complaint by Public Servant, Court or Person Aggrieved

Sources

• Bharatiya Nagarik Suraksha Sanhita, 2023 (Gazette text): Sections 153, 163, 215, 438 and 531, and the First Schedule entries for Section 223 BNS.
• Bharatiya Nyaya Sanhita, 2023 (Gazette text): Sections 223 and 358.
• Code of Criminal Procedure, 1973 (India Code text): Sections 134, 144, 144A (with the Appendix on Act 25 of 2005), 195 and 397, and the First Schedule entries for Section 188 IPC.
• Indian Penal Code, 1860 (India Code text): Section 188.
• Constitution of India: Article 20(1).
• Judgments read in full text: Gulam Abbas v. State of U.P. (1982_1_1077_1136_EN.md); In Re: Ramlila Maidan Incident (2012_4_971_1152_EN.md); Anuradha Bhasin v. Union of India (2020_1_812_908_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.