CODE OF CRIMINAL PROCEDURE, 1973

Dispute concerning right of use of land or water (1) Whenever an Executive Magistrate is satisfied from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, 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 pleader on a specified date and time and to put in written statements of their respective claims. Explanation : The expression “land or water” has the meaning given to it in sub-section (2) of section 145. (2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists; and the provisions of section 145 shall, so far as may be, apply in the case of such inquiry. (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the receipt under sub-section (1) of the report of a police officer or other information leading to the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such receipt. (4) When in any proceedings commenced under sub-section (1) of section 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1); and when in any proceedings commenced under sub-section (1) the Magistrate finds that the dispute should be dealt with under section 145, he may; after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145. STATE AMENDMENTS MAHARASHTRA ■ Sub-section (1) For the words “Whenever an Executive Magistrate” substitute the words “Whenever in greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate”. Saving of proceedings pending before Executive Magistrates in Greater Bombay under sections 145 to 147 of the Code (Act 2 of 1974) – If any proceedings under sections 145, 146 and 147 of the said Code are pending before any Executive Magistrate in Greater Bombay on the day immediately preceding the date of commencement of this Act, they shall be continued, heard and disposed of by that Magistrate, as if this Act had not been passed—Vide Maharashtra Act No. 1 of 1978.

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 145 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 145, 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 (5 of 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.

Procedure where dispute concerning land or water is likely to cause breach of peace (1) 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 pleader, 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 Code for the service of a 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 then, 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, 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 the powers of the Magistrate to proceed under section 107. STATE AMENDMENTS MAHARASHTRA ■ Sub-section (1) For the words “whenever an Executive Magistrate” substitute the words “whenever in Greater Bombay, a Metropolitan Magistrate and elsewhere in the State, an Executive Magistrate”. ■ Sub-section (10) Sub-section (10) is to be read as under : “(10) In the case of an Executive Magistrate taking action under this section, nothing in this section shall be deemed to be in derogation of his power to proceed under section 107. In the case of a Metropolitan Magistrate taking action under this section, if at any stage of the proceeding, he is of the opinion that the dispute calls for an action under section 107, he shall, after recording his reasons, forward the necessary information to the Executive Magistrate having jurisdiction to enable him to proceed under that section.” — Vide Maharashtra Act No. 1 of 1978.

[Power to prohibit carrying arms in procession or mass drill or mass training with arms (1) The District Magistrate may, whenever he considers it necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place. (2) A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation. (3) No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made. (4) The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by notification, direct that a public notice issued or order made by the District Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification. (5) The State Government may, subject to such control and directions as it may deem fit to impose, by general or special order, delegate its powers under sub-section (4) to the District Magistrate. Explanation.—The word “arms” shall have the meaning assigned to it in section 153AA of the Indian Penal Code (45 of 1860).]

Power to issue order in urgent cases of nuisance or apprehended danger (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 speed 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 134, 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, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot, or an affray. (2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. (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 from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification. (5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor-in-office. (6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub-section (4). (7) Where an application under sub-section (5) or sub-section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing. COMMENTS Supreme Court’s decision on old sub-section (6)– No change of substance in the old provision of this well known section has been made. The only notable change is in regard to the power of the State Government to extend the operation of the Magistrate’s order beyond two months. The Supreme Court in State of Bihar v. K.K. Misra AIR 1971 SC 1667 had struck down old sub-section (6) as invalid because it conferred arbitrary powers on the executive by reason of the facts: a.   that there was no provision for making any representation by the aggrieved party against the order of the State Government; b.   that there was no indication that the Government’s direction was of a temporary nature because no time limit was laid down in the sub-section; and c.   that there was no provision for appeal or revision. Extension of Magistrate’s orders – To meet these objections, proviso to sub-section (4) has been modified, sub-section (6) has been newly added and sub-section (7) [corresponding to old sub-section (5)] has been amended, to the effect that the State Government cannot extend the Magistrate’s order for a period of more than six months from the date of expiry of the initial order and that the State Government may, on its own motion or on the application of the aggrieved party, rescind or alter any such order extending the duration. It has also to afford opportunity to the applicant and record reasons for rejecting the application. Other changes – The other changes of less substantial character made in this section are: a.   For obvious reasons powers under the section have been conferred only on the Executive Magistrates (DM, SDM). The power to empower Executive Magistrates has been retained only with the State Government and has not been given to the DM unlike in the old section. b.   Sub-section (3) of the old section had used the expression “to the public generally when frequenting or visiting a particular place”. This had given rise to uncertainties in respect of two points: i.   exact meaning of “particular place”; ii.   whether persons residing in an area could be said to “frequent or visit” it. The High Courts of Bombay, Calcutta and Madras had taken limited or narrow view of these two concepts—See Dwarkadas Bhagubhai v. Emp. AIR 1914 Bom. 198, Abdul Majid Basunia v. Nripendra Nath Mazumdar AIR 1934 Cal. 393 and In re. Sriramamurty AIR 1931 Mad. 242. The words quoted above in the old section have, therefore, been amplified by “or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area”.

Magistrate may prohibit repetition or continuance of public nuisance A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.  

Injunction pending inquiry (1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter. (2) In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury. (3) No suit shall lie in respect of anything done in good faith by a Magistrate under this section.

Procedure on order being made absolute and consequences of disobedience (1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860). (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found. (3) No suit shall lie in respect of anything done in good faith under this section.

Power of Magistrate to furnish written instructions, etc (1) Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may— (a)   furnish such person with such written instructions as may seem necessary for his guidance; (b)   declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid. (2) The report of such person may be read as evidence in the case. (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.

Power of Magistrate to direct local investigation and examination of an expert The Magistrate may, for the purposes of an inquiry under section 137 or section 138— (a)   direct a local investigation to be made by such person as he thinks fit; or (b)   summon and examine an expert.