Maintenance of public order and tranquility under CrPC

Author: Hardik Baid, NLU, Delhi

Maintenance of Public Order and Tranquility Under CrPC

Public Order and Tranquility is paramount for any society. The government needs to ensure the maintenance of the public order. It is indispensable for the smooth and proper functioning of society and for the citizens to enjoy their liberty and free state of mind. In a situation of disorder, the enforcement of law and order is the duty and function of the police and legal system. To enable the same, the Criminal Code of Procedure provides for the maintenance of public order and tranquility. Maintenance of public order requires that the order should be maintained in public places and should not be obstructed by assemblies and processions.[1] The article deals with the concept of public order and tranquility. It mainly focuses on the police officers’ duty in times of public disorder. The public disorder might be caused due to unlawful assembly, riots, mass gathering causing arson or violence, etc. Several provisions have been laid down in the Indian Penal Code, The Code of Criminal Procedure, and The Police Act for the maintenance of public order and tranquility. Maintenance of Public Order and Tranquility has been dealt with specifically under Chapter X of the Code of Criminal Procedure.

Chapter X of the CrPC has been divided into four parts that classify the offences mentioned within each of them for disturbing the peace and order in the society. These are Part A– Unlawful Assemblies, Part B – Public Nuisances, Part C – Urgent Cases of Nuisance, or Apprehended Danger and Part D –Disputes as to Immovable property. In the following section, all these sections will be thoroughly discussed in order to create an exhaustive knowledge base related to these offences against public order and tranquility.

PART A: UNLAWFUL ASSEMBLY

An unlawful assembly is a group of five or more than five persons that have a common object and engages in illegal acts such as compelling a person to do an unlawful act. Thus it is desirable for law enforcement bodies to disperse such unlawful assembly as per the sections provided.

Section 129: Use of civil force for dispersal of an assembly

According to section 129 of Cr.P.C,the order to disperse any assembly that is an unlawful one and likely to cause disturbance to the public peace may be issued by-

1. Any executive Magistrate
2. Officer in charge of a police station or,
3. Any police officer who is a sub-inspector or above the rank of sub-inspector in the absence of such officer in charge

Post-issuance of such order of dispersal, it is the duty of the members of the assembly to whom such notice is issued to disperse accordingly. However, in case the assembly does not comply with the order and does not disperse then any Executive Magistrate or officer-in-charge of a police station or in absence of the officer-in-charge by a police officer, not below the rank of sub-inspector as empowered under section 129 may use force in order to disperse such unlawful assembly. If necessary, even if a person is not an officer of armed force but acting as one, may arrest or confine the members of such unlawful assembly for subsequent punishing according to the law.

Section 130: Use of armed forces to disperse the assembly

Section 130 of CrPC is applicable in the situation where the unlawful assembly cannot be dispersed otherwise.

1. When an unlawful assembly cannot be dispersed by any other means, and when it is necessary for the public security that such assembly should be dispersed, it can be dispersed with the help of armed forces by the order of Executive Magistrate of the highest rank present.
2. Such Magistrate may order any officer in command of any group of persons belonging to the armed forces to take the help of armed forces under his command to disperse the assembly. He is also empowered to arrest or confine the members of such assembly in order to maintain public security in accordance with the orders of the Magistrate. He has also the power to have them punished according to law.
3. The requisitions laid down under this section shall be obeyed by every officer of the armed forces empowered under this section in such manner as he thinks fit. While following the orders and taking any step to maintain public security, he shall use as little force with the objective of maintenance of public order.

Thus, section 130 gives the authorities the right to use force to disperse the unlawful assembly when it is needed in the interest of maintaining public security.

Section 131: Powers of certain armed force officers to disperse the assembly

Section 131 is operational and envisages such situations where the officers of armed force cannot establish a link or communicate with the Executive Magistrate as under Section 130 of the CrPC. In such a situation, where it is paramount for the armed forces to maintain peace and order caused by the unlawful assembly and they cannot wait for the orders from the Executive Magistrate, they shall proceed to deploy force to disperse such assembly. However, during this time, if it becomes viable and possible for them to establish communication with the Magistrate they shall do so and act as per the orders by the Executive Magistrate.

This section has been enacted in order to lay down provisions to maintain public security in the case when no executive magistrate can be reached so that the public order and tranquility can be maintained more efficiently.

Section 132: Protection against prosecution for acts done under proceeding sections

Protection against the prosecution for any act done under section 129 to 131 of the CrPC is provided under section 132 and no officer acting under the duty shall be prosecuted except with the sanction of State or Central Government.

Section 132 no prosecution shall be instituted in any Criminal Court against any person for any act purporting to be done under section 129, section 130 or section 131, except in the case where the central or state government sanctions the same. Since the officers, the Executive Magistrate, members of armed forces, and other officers were acting in good faith and as per the compliance with the sections as a part of their duty, they ought to be provided protection by the law. However, in case an officer leaps beyond the boundaries of the law such as ordering or actually firing at the assembly[2] when it is not required shall not be provided protection under section 132.

PART B: PUBLIC NUISANCES

The term public nuisance has been defined under section 268 of the Indian Penal Code as an act or omission which causes any injury, danger or annoyance to the public or to the people in general who dwell or occupy the property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Though it is not so dangerous and urgent as unlawful assembly, a public nuisance is a threat to public peace and security.  Thus there are following provisions under Cr.P.C as section 133,134, 135, 136, 137, 138, 139, 140, 141, 142, and 143 that deal with the procedural aspect in cases of nuisance.

Section 133: Conditional Order for removal of nuisance

Section 133 provides for the passing of conditional order by any Magistrate in case of public nuisance caused by any of the things as specified under the section. It has been held that while instituting a criminal proceeding under section 133 there is no bar to institute a civil suit[3].

There are six categories of public nuisance which can be resolved under this section:

1. The unlawful obstruction or nuisance to any public place or to anyway, river or channel lawfully used by the public.
2. The conduct of any trade or occupation or keeping of any goods or merchandise which is/can be injurious to the health or physical comfort of the community.
3. The construction of any building, or disposal of any substance, as it is likely to occasion or explosion.
4. A building, tent, or structure, or a tree as it is likely to cause damage or injury to a person.
5. An unfenced tank, well or excavation near a public place or way.
6. A dangerous animal that requires confinement, destruction, or disposal.

A conditional order under section 133 of Cr.P.C is mandatory and without it, no final order can be made. The conditional order must specify the time period in which the nuisance or obstruction is to be removed or resolved. The conditional order can be passed to remove the obstruction or nuisance, to abstain from carrying on such trade, to remove or regulate as ordered such goods or merchandise causing a nuisance, to remove, repair or support such building, to confine or dispose of such dangerous animal as manner prescribed in the order.

Section 134: Service or notification of order

Section 134 and 135 of the CrPC provide for service or notification of order issued to the person for causing nuisance and to obey the order or show cause against the order issued respectively. Under section 134 the order is followed for service of summons or shall be served by proclamation. Under section 135 a person can either carry out the order by acting as per the instructions or can show cause. A reasonable opportunity should be given to the party to show cause under section 135(b). 

Section 136: Consequences of failing to obey such order

According to section 136, If the person against whom the order is issued fails to perform such act or appear and show cause, he is liable to the penalty prescribed under section 188 of the Indian Penal Code, i.e., Disobedience to order duly promulgated by a public servant.

In the case of Nagarjuna Paper Mills Ltd. v. S.D.M. & R.D. Officer, Sangareddy, the court held that Sub- Divisional Magistrate is empowered to pass an order under section 136 of the code to close factory causing pollution as it failed to produce appreciation certificate from the Pollution Control Board.

Section 137: Denial of Public Right

Section 137 is applicable in cases where the party denies the existence of any public right in order to cause a nuisance. It shall be incumbent upon the party to claim and substantiate the same with evidence. It lays down the procedure where public rights are denied and it is mandatory to follow them before commencing procedure under section 138 CrPC.

The requirements of this section are as follows.

• First, that the party against whom a provisional order is made shall appear before the magistrate, and deny the existence of the public right in question.
• Secondly, the party shall produce some reliable evidence that is legal evidence, admissible in the court, and supporting his denial of public right in question.

If all these above-said conditions are satisfied, the magistrate’s Jurisdiction to continue the proceeding is ceased.

Section 138: Procedure when he appears to show cause

According to section 138, the magistrate shall take evidence as in summoning cases when the person against the order is passed under section 133 of the Code of Criminal Procedure appears and show cause against the order.

There can be two consequences:

1. If the magistrate is satisfied, the order shall be made absolute with or without modification if the order either is reasonable and proper
2. If the magistrate is not satisfied, further proceedings shall not be taken in the case.

It is the duty of the Magistrate to take evidence as the ground of order he has to make.[4] The proceeding cannot be dropped without taking evidence.

Section 141 lays down the procedure to issue an absolute order directing him to perform order within the time fixed in the notice.  In case if the act is not performed, the magistrate can recover the cost of performing by the sale of immovable or any movable property.

Under section 142 of Cr.P.C, an injunction can be issued against whom the order is made by a magistrate under section 133 where immediate measure is required to prevent any imminent danger or serious injury

PART C – URGENT CASES OF NUISANCE OR APPREHENDED DANGER

Section 144 comes into play when there are urgent cases of nuisance or apprehended danger.

When there is sufficient ground for proceeding under this section, an immediate and speedy remedy is required for maintenance of public order, directions can be issued by the magistrate by a written order directing any person to prevent:

• Obstruction, damage or injury;
• Danger to human life, health or safety;
• Disturbance of the public tranquillity
• Riot
• Affray

If there is a matter of emergency or where delay in the matter in serving a notice can lead to grave injury or damage, the order can be passed ex-parte. The order passed under section 144 is temporary in nature.[5] The order passed under section 144 is a restrictive order and not a mandatory order directing a person to do some act.[6]

According to section 144(3), an order issued under section shall remain in force for a period not exceeding more than two months. However in exceptional cases of emergency such as to prevent danger to human life, health, and safety, or to prevent riot or affray and maintain public order the order issued by magistrate can be extended for a further period of six months.

PART – D: DISPUTES RELATED TO IMMOVABLE PROPERTY

Section 145 deals with breach of peace by a dispute regarding land and water. Section 145 basically deals with disputes regarding possession. The section prevents any breach of public peace by maintaining possession of one or the other party unless the actual rights are decided by the civil court. The Executive Magistrate shall make an order summoning the parties to attend the court where a report or information of dispute is brought before him concerning breach of peace concerning land, water, or boundaries.

There must be an apprehension of breach of peace and public order for the magistrate to pass preliminary orders.[7] The right under section is not merely procedural rights but certain substantive rights having an integral connection with the enjoyment of the immovable property[8].

Section 146: Attachment and appointment of a receiver

After making an order under section 145, the magistrate can order under section 146 for attachment of the subject in dispute and appointment of a receiver if:

• The Magistrate considers the case to be of an emergency
• he decides that none of the parties was in the possession as referred under section 145

When there is no longer felt that there are chances of breach of peace, the order of attachment can be withdrawn at any time by the magistrate. When a receiver is subsequently appointed by the civil court for the subject in dispute the Magistrate shall issue an order against the receiver appointed by him to hand over the possession to the receiver appointed by the civil court.

Section 148- Provisions for local inquiry

According to section 148, when under section 145, 146 or 147, the necessity to conduct an inquiry is felt; a District Magistrate or Sub-divisional Magistrate may depute any subordinate magistrate to conduct an inquiry by issuing a written instruction which may be necessary for his guidance.[9]

Conclusion

Public order and peace is paramount for national security and the thriving of a civilized society. It is indispensable that people live in harmony and free from any apprehensions caused by unsocial elements or group of elements of the society. However, there arises a situation when this order and peace is faced with turbulence and the law enforcement authorities have to step in to restore the order and to prevent further disorder. For the same, there are several provisions in the CrPC that provide for the maintenance of public order and tranquility. Officers are provided with powers and rights to maintain order and prevent disorder. The procedures under chapter X of Cr.P.C are to be taken in urgent matters which are a threat to public peace and security. However, in contemporary times we have witnessed a shift in paradigm where these preventive measures are interfering with fundamental rights freedom and life. Police and other authorities are given discretionary power that causes arbitrariness and infringement of the right to freedom. For a democratic society, this situation or turmoil and arbitrariness is not only unprecedented but also undesirable. Close monitoring should be done to the execution of the rights empowered to authorities to prevent its misuse with stringent actions in instances of rife misuse. This would ensure the prevention of public order and tranquility in true sense.

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[1] Section 31, Police Act 1861

[2] State of Karnataka v. B. Padmanabha Behya,

[3] Rakesh Kumar v. State of U.P., 1994 CriLJ 289

[4] M.L. Gopalaswamy v. State of Mysore, Criminal Revn. Petn. No. 118 of 1973

[5] M.S. Associates v. Police Commissioner, 1997 CriLJ 377

[6] Kushumkumaree Debee v.  Hemalinee Debee, (1933) 63 Cal 11

[7] Ranjit Singh v. Moti Lal Katiyar, 1988 (1) Crimes 102, 105 (Alld)

[8] Dhanbar Ali v. Haripada Saha, 1976 CriLJ 1924

[9] Lakhan Singh v.  Kishun Singh, AIR 1970 Pat 379