Breach of Peace under Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

The Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, has brought significant updates to the legal framework of India, replacing certain provisions of the Code of Criminal Procedure (CrPC). Among these, Sections 164 and 165 of the BNSS address disputes concerning land or water that could lead to a breach of peace, along with mechanisms to address such conflicts. These provisions are crucial for maintaining public order and ensuring timely legal intervention.

Understanding Breach of Peace under BNSS

A breach of peace refers to situations where disputes between individuals or groups have the potential to disturb public order or escalate into violence. In the context of BNSS, this often relates to disputes over land, water, or property boundaries that, if unresolved, could threaten societal harmony.

Under BNSS, Sections 164 and 165 provide the legal framework for handling such disputes. These sections empower Executive Magistrates to intervene, assess possession claims, and take preventive measures to avert further conflict.

Section 164: Addressing Disputes Likely to Cause Breach of Peace

Text of Section 164 of Bharatiya Nagarik Suraksha Sanhita

164. Procedure where dispute concerning land or water is likely to cause breach of peace.

Whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by an advocate on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.

(2) For the purposes of this section, the expression “land or water” includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.

(3) A copy of the order shall be served in the manner provided by this Sanhita for the service of summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

(4) The Magistrate shall, without reference to the merits or the claims of any of the parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, take such further evidence, if any, as he thinks necessary, and, if possible, decide whether any and which of the parties was, at the date of the order made by him under sub-section (1), in possession of the subject of dispute:

Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub-section (1).

(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under sub-section (1) shall be final.

(6) (a) If the Magistrate decides that one of the parties was, or should under the proviso to sub-section (4) be treated as being, in such possession of the said subject of dispute, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction; and when he proceeds under the proviso to sub-section (4), may restore to possession the party forcibly and wrongfully dispossessed;

(b) the order made under this sub-section shall be served and published in the manner laid down in sub-section (3).

(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.

(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay, he may make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.

(10) Nothing in this section shall be deemed to be in derogation of powers of the Magistrate to proceed under section 126.

[Similar to Section 145 from Old CrPC]

Scope and Applicability

Section 164 of BNSS is invoked when a dispute involving land, water, or boundaries poses a risk to public peace. The provision empowers an Executive Magistrate to act based on a police report or other credible information.

This section was earlier codified as Section 145 under the CrPC, emphasising continuity in addressing such disputes. However, BNSS introduces updated procedural clarity to strengthen the resolution process.

Key Features of Section 164

1. Initiation of Proceedings: The Magistrate must be satisfied that the dispute could lead to a breach of peace. Satisfaction arises from a police report or any other reliable information.
2. Order Issuance: The Magistrate issues a written order, stating the grounds for their satisfaction. Parties involved in the dispute are required to appear in person or through advocates. Written statements of their respective possession claims must be submitted.
3. Assessment of Claims: The Magistrate examines the claims and evidence to determine the actual possession of the disputed property. The decision focuses on possession rather than ownership or title.
4. Restoration of Possession: If the Magistrate finds that one party was forcibly dispossessed within 60 days before receiving the dispute information, possession can be restored as of the date of the order.

Illustrative Example

Imagine two neighboring farmers disputing the ownership of a piece of agricultural land. If the dispute escalates to the point of physical altercations or community tensions, the local Magistrate can invoke Section 164 to identify the party in possession and restore order.

Section 165: Emergency Measures for Breach of Peace

While Section 164 focuses on determining possession, Section 165 of BNSS empowers Magistrates to take emergency measures to prevent escalation. These measures include attaching the disputed property and appointing a receiver to manage it temporarily.

Text of Section 165 of Bharatiya Nagarik Suraksha Sanhita

165. Power to attach subject of dispute and to appoint receiver.

(1) If the Magistrate at any time after making the order under sub-section (1) of section 164 considers the case to be one of emergency, or if he decides that none of the parties was then in such possession as is referred to in section 164, or if he is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute until a competent Court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof:

Provided that such Magistrate may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of breach of the peace with regard to the subject of dispute.

(2) When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any Civil Court, make such arrangements as he considers proper for looking after the property or if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908:

Provided that in the event of a receiver being subsequently appointed in relation to the subject of dispute by any Civil Court, the Magistrate-

(a) shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him;

(b) may make such other incidental or consequential orders as may be just.

[Similar to Section 146 from Old CrPC]

Key Features of Section 165

1. Grounds for Attachment: The Magistrate may attach the disputed property in case of:
   • Emergencies requiring immediate action.
   • Inability to determine possession under Section 164.
   • Situations where neither party is found in possession.
2. Duration of Attachment: The property remains attached until a competent civil court decides the matter of ownership or entitlement.
3. Withdrawal of Attachment: The attachment can be withdrawn if the Magistrate is satisfied that the threat to public peace no longer exists.

Impact of Civil Litigation

If a civil court takes cognisance of the matter, the proceedings under Sections 164 and 165 must end, transferring the responsibility of determining ownership to the civil court.

Conditions for Applicability of Sections 164 and 165

For Sections 164 and 165 to be invoked, specific conditions must be met:

1. Nature of the Dispute The dispute must involve land, water, or property boundaries. The subject matter may include:
   • Agricultural produce.
   • Fishing grounds.
   • Structures or commercial areas.
   • Financial gains or rental income.
2. Potential for Breach of Peace: The dispute should have the potential to disturb public order or escalate into violence.
3. Jurisdiction: The Magistrate must have jurisdiction over the area where the dispute exists.
4. Timeline of Possession: Claims regarding possession must relate to the 60-day period before the Magistrate’s order.

Judicial Perspective on Breach of Peace

The judiciary has provided guidance on interpreting and applying Sections 164 and 165 (or their earlier counterparts under CrPC). One notable case is:

• Mohd Shakir v. State of Uttar Pradesh (2022):
  The Supreme Court held that when dropping proceedings due to ongoing civil litigation, a Magistrate cannot make findings about the property rights of the parties involved.

This judgement underscores the limited scope of Magistrates under Sections 164 and 165, emphasising their focus on preventing breaches of peace rather than adjudicating ownership disputes.

Conclusion

Sections 164 and 165 of the BNSS, 2023, play a vital role in maintaining public order by addressing disputes that could lead to breaches of peace. These provisions empower Magistrates to intervene promptly, assess possession claims, and take emergency measures when necessary. While their limited scope ensures that ownership rights remain the purview of civil courts, these sections are indispensable for immediate conflict resolution.