CODE OF CRIMINAL PROCEDURE, 1973

Procedure where he appears to show cause (1) If the person against whom an order under section 133 is made appears and show cause against the order, the Magistrate shall take evidence in the matter as in a summons case. (2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification. (3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

Procedure where existence of public right is denied 1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter. (2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138. (3) A person who has, on being questioned by the Magistrate under sub-section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.

Consequences of his failing to do so If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860), and the order shall be made absolute.

Person to whom order is addressed to obey or show cause The person against whom such order is made shall— (a)   perform, within the time and in the manner specified in the order, the act directed thereby; or (b)   appear in accordance with such order and show cause against the same. COMMENTS LAW COMMISSION REPORTS Abolition of jury – This section corresponds to section 135 of the old Code minus the provision relating to appointment of jury. In recommending the deletion of provision for jury, the Law Commission observed: “Sections 135 to 139 (old Code) contemplate the appointment of jury consisting of not less than five members who will practically decide whether the conditional order made by the Magistrate under section 133 is reasonable and proper or whether it should be modified in any way or whether it should be made absolute…….We notice……….that, ‘experience over the years had shown that very rarely did a party ask for the appointment of a jury; further whenever a party did ask for the appointment of a jury, the request was not made in order to have a proper decision of the case but was made mainly for the purpose of delaying the proceedings’……….A jury of the type provided for………is, in our opinion, most unlikely to be helpful in reaching a proper decision. It will be difficult to find a person in the locality imbued with a strong civic sense, and capable of resisting extraneous pressure, to serve as jurors in such proceedings.”

Service or notification of order (1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons. (2) If such order cannot be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rule, direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

Conditional order for removal of nuisance (1) Whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers— (a)   that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or (b)   that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or (c)   that the construction of any building, or, the disposal of any substance, as is likely to occasion conflagration or explosion, should be prevented or stopped; or (d)   that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or (e)   that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or (f)   that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order— (i)   to remove such obstruction or nuisance; or (ii)   to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or (iii)   to prevent or stop the construction of such building, or to alter the disposal of such substance; or (iv)   to remove, repair or support such building, tent or structure, or to remove or support such trees; or (v)   to fence such tank, well or excavation; or (vi)   to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereinafter provided, why the order should not be made absolute. (2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation : A “public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.

Protection against prosecution for acts done under preceding sections (1) No prosecution against any person for any act purporting to be done under section 129, section 130 or section 131 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. (2) (a)   No Executive Magistrate or police officer acting under any of the said sections in good faith; (b)   no person doing any act in good faith in compliance with a requisition under section 129 or section 130; (c)   no officer of the armed forces acting under section 131 in good faith; (d)   no member of the armed forces doing any act in obedience to any order which he was bound to obey, shall be deemed to have thereby committed an offence. (3) In this section and in the preceding sections of this Chapter,— (a)   the expression “armed forces” means the military, naval and air forces, operating as land forces and includes any other armed forces of the Union so operating; (b)   “officer”, in relation to the armed forces, means a person commissioned, gazetted or in pay as an officer of the armed forces and includes a junior commissioned officer, a warrant officer, a petty officer, a non-commissioned officer and a non-gazetted officer; (c)   “member”, in relation to the armed forces, means a person in the armed forces other than an officer. COMMENTS Sanction granted under section 132 is not a substitute for sanction under section 197 – There are six significant points of difference between sections 132 and 197, these are: (1) The two sanctions are addressed to altogether different persons. While sanction under section 132 is addressed to the intending complainant, sanction under section 197 is addressed to the Magistrate presiding over a Court. (2) The two sanctions serve two altogether different purposes. While the sanction under section 132 clothes the intending complainant with authority to institute a complaint and set the machinery of the criminal Court in motion, the sanction under section 197 clothes the Court with the jurisdiction to take cognizance of the offence. Without the former, the intending complainant cannot trigger the proceedings, without the latter the Magistrate cannot have seisin over the matter or act in the matter. (3) the absence of sanction in each case visits different persons with different consequences. Absence of the former disables the intending complainant whereas absence of the latter disables the Court. (4) The disability operates in two different spheres. Want of sanction under section132 renders the complaint invalid. Want of sanction under section 197 vitiates all the proceedings in the Court. For want of the former, the complainant cannot complain, for want of the latter the Court cannot try the case. (5) The sanctioning authority has to address itself to different questions. In regard to a sanction under section 132, Cr. P.C. the question to be answered is whether the intending complainant is a suitable person to be authorized for prosecuting the matter in good faith. In regard to the sanction under section 197 the question to be answered is which particular Court should be empowered to try the case. So also in granting sanction under section 197 the sanctioning authority has to consider whether or not to exercise the powers under section 197(4) to specify “the person by whom, the manner in which, and the offence or offences for which” the concerned public servant should be tried and “the Court before which the trial is to be held”. The authority seized of the matter in the context of sanction under section 132 does not have to address itself to these questions and in fact has no competence in this behalf. (6) One is an authority to an individual to ‘prosecute’ the alleged offender, the other is an authority to ‘try’ the alleged offender. Therefore, a sanction under section 132 is no substitute for a sanction under section 197—Ram Kumar v. State of Haryana AIR 1987 SC 735.

Power of certain armed force officers to disperse assembly When the public security is manifestly endangered by any such assembly and no Executive Magistrate can be communicated with, any commissioned or gazetted officer of the armed forces may disperse such assembly with the help of the armed forces under his command, and may arrest and confine any person forming part of it, in order to disperse such assembly or that they may be punished according to law; but if, while he is acting under this section, it becomes practicable for him to communicate with an Executive Magistrate, he shall do so, and shall thenceforward obey the instructions of the Magistrate, as to whether he shall or shall not continue such action

Use of armed forces to disperse assembly (1) 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. (2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of the armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, or as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law. (3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force, and do as little injury to person and property, as may be consistent with dispersing the assembly and arresting and detaining such persons. COMMENTS Provisions contained in sections 130 and 131 cannot be treated as comparable and adequate to deal with situation requiring use of armed forces in aid of civil power as envisaged by the Armed Forces (Special Powers) Act, 1958 – The provisions contained in sections 130 and 131 cannot be treated as comparable and adequate to deal with the situation requiring the use of armed forces in aid of civil power as envisaged by the Armed Forces (Special Powers) Act, 1958. Section 130 makes provision for the Armed Forces being asked by the Executive Magistrate to disperse an unlawful assembly which cannot be otherwise dispersed and such dispersal is necessary for the public security. The said provision has a very limited application inasmuch as it enables the Executive Magistrate to deal with a particular incident involving breach of public security arising on account of an unlawful assembly and the use of the Armed Forces for dispersing such unlawful assembly. Similarly, under section 131, a commissioned or gazetted officer of the Armed Forces has been empowered to deal with an isolated incident where the public security is manifestly endangered by any unlawful assembly. The provisions in sections 130 and 131 cannot thus be treated as comparable and adequate to deal with the situating requiring the continuous use of Armed Forces in aid of the civil power for certain period in a particular area as envisaged by the Central Act—Naga People’s Movement of Human Rights v. UOI AIR 1998 SC 431.

Dispersal of assembly by use of civil force (1) Any Executive Magistrate or officer-in-charge of a police station or, in the absence of such officer-in-charge, any police officer, not below the rank of a sub-inspector, may command any unlawful assembly, or any assembly of five or more persons likely to cause a disturbance of the public peace, to disperse; and it shall thereupon be the duty of the members of such assembly to disperse accordingly. (2) If, upon being so commanded, any such assembly does not disperse, or if, without being so commanded, it conducts itself in such a manner as to show a determination not to disperse, any Executive Magistrate or police officer referred to in sub-section (1), may proceed to disperse such assembly by force, and may require the assistance of any male person, not being an officer or member of the armed forces and acting as such, for the purpose of dispersing such assembly, and, if necessary, arresting and confining the persons who form part of it, in order to disperse such assembly or that they may be punished according to law. COMMENTS Compensation in case of death by police firing – In case of death by police firing ordinarily a compensation of rupees twenty thousand is paid but it does not mean that in the case of death the liability of the wrong-doer is absolved when compensation of Rupees twelve thousand is paid. But as a working principle and for convenience and with a view to rehabilitating the dependants of the deceased such compensation is being paid, which is without prejudice to any just claim for compensation that may be advanced by the relations of the victims—Peoples’ Union for Democratic Rights v. State of Bihar AIR 1987 SC 355.