APPLICATION UNDER SECTION 163(5) BNSS, 2023

 

APPLICATION UNDER SECTION 163(5) BNSS, 2023

(For Rescission or Alteration of Preventive Order)

To,
The Executive Magistrate
[Office Address]
[District Name], [State]

Date: [Insert Date]

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Subject: Application for rescission/alteration of order passed under Section 163 BNSS, 2023

Respected Sir/Madam,

I, [Your Name], son/daughter of [Parent’s Name], resident of [Full Address], most respectfully submit as follows:

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1️⃣ Facts of the Case:

• That your office issued an order dated [mention date of order] under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which directs [briefly describe what the order prohibits or mandates — e.g., prohibition on public gathering, restriction on movement, order to close certain premises, etc.].

• That I am directly affected by this order as [explain your connection — e.g., local resident, business owner, organizer of event, etc.].

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2️⃣ Grounds for Rescission/Alteration:

I respectfully submit that the said order:

• Was passed without sufficient factual basis or material evidence justifying the urgency or danger.

• Causes disproportionate harm to my lawful activities or fundamental rights under Articles 19(1)(a), (b), (c) of the Constitution.

• Is based on misapprehension/misrepresentation of facts; the actual situation on ground is peaceful and under control.

• Alternative, less restrictive measures are available that can address any legitimate concern without blanket prohibitions.

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3️⃣ Prayer:

In light of the above, I humbly request your good office to:

• Rescind the order dated [date] under Section 163 BNSS, 2023; or

• Modify/alter the scope of the order to reasonably balance public safety with individual rights; and

• Pass any other appropriate relief as deemed fit.

I am ready to appear personally or through counsel and assist the proceedings. Kindly provide me an opportunity of hearing before final disposal of this application, as required under Section 163(5).

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Enclosures:

• Copy of the Section 163 order

• Proof of identity

• Supporting documents/evidence (if any)

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Thanking you,
Yours sincerely,
[Your Name]
[Your Contact Number & Email]

Practical Steps for Using or Responding to Section 163 BNSS, 2023

 

⚡ Practical Steps for Using or Responding to Section 163 BNSS, 2023

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✅ If you are seeking an order under Section 163 (applicant side):

1️⃣ Prepare a detailed application

• Clearly describe the urgency or danger (to life, safety, health, tranquility)

• Attach supporting materials: complaints filed, photos, news clippings, witness statements

• Specify the relief you want: prohibit someone from doing something, regulate access, restrict movement, etc.

2️⃣ File before the right Magistrate

• District Magistrate (DM), Sub-Divisional Magistrate (SDM), or specially empowered Executive Magistrate

• File in writing, submit copies, and keep acknowledgment

3️⃣ Follow up

• Magistrate can issue ex parte (without hearing the other side) in urgent cases

• Ask for certified copy of the order once issued

• Provide copy to police or local administration if needed for enforcement

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✅ If you are affected by a Section 163 order (opposing side):

1️⃣ Get a copy of the order

• You have the right to know the reasons and the facts behind the order

• Check whether the order was served properly

2️⃣ Apply for rescission or alteration

• Under Section 163(5): File an application before the Magistrate

• Under Section 163(6): If the order was extended by state, apply to the State Government

3️⃣ Prepare your defense

• Show that there is no real urgency or danger

• Provide evidence that the facts were misrepresented or exaggerated

• Argue proportionality — that the order disproportionately affects your lawful rights

4️⃣ Get a hearing

• The Magistrate or State Government must give you a chance to appear (in person or through advocate)

• If they reject your application, they must record reasons in writing

5️⃣ Challenge in court (if needed)

• If the rescission is denied, you can approach the High Court under writ jurisdiction (Article 226) to challenge the legality or constitutionality of the order

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⏰ Key Timelines to Remember

• Initial Section 163 order: Valid up to 2 months

• State extension (if issued): Max additional 6 months

• Apply for rescission/alteration: Immediately after receiving the order

• Hearing opportunity: Must be given before rejection

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🔑 Best Practices

✔ Always maintain documentation (copy of order, application, evidence)
✔ Act quickly — these are urgent, time-bound matters
✔ Keep communication with local police or administration for on-ground clarity
✔ Get legal help if the order impacts your fundamental rights

some recent rulings from the Supreme Court and various High Courts concerning Section 144 of the Criminal Procedure Code (CrPC)

 some recent rulings from the Supreme Court and various High Courts concerning Section 144 of the Criminal Procedure Code (CrPC), which has been succeeded by Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023. These judgments provide insights into the application and limitations of such preventive measures:

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🏛️ Supreme Court Rulings

1. Aruna Roy & Anr. v. Union of India (2024)

• Context: District Magistrates in Rajasthan imposed Section 144 orders prohibiting public gatherings during the Lok Sabha elections.

• Ruling: The Supreme Court directed that applications for public meetings, such as democracy yatras, must be decided within three days. The Court emphasized that blanket prohibitions without specific reasoning are not permissible. 

2. State of Jharkhand v. Nishikant Dubey & Ors. (2025)

• Context: The Jharkhand government challenged the High Court's quashing of cases against BJP leaders accused of violating Section 144 during a protest.

• Ruling: The Supreme Court criticized the habitual use of Section 144 to curb protests, stating that such misuse sends a wrong signal and undermines democratic rights. 

⚖️ High Court Rulings

1. Calcutta High Court – Sandeskhali Case (2024)

• Context: An order under Section 144 CrPC was imposed in the Sandeskhali Police Station area.

• Ruling: The Court quashed the order, citing lack of proper reasoning and directed the state to issue more focused orders targeting specific disturbance areas rather than blanket restrictions. 

2. Calcutta High Court – Political Rally Ban (2023)

• Context: A political rally was banned under Section 144(2) CrPC.

• Ruling: The Court emphasized that such orders cannot be issued hastily and must be based on careful consideration, especially when fundamental rights are at stake. 

3. Madras High Court – Public Assembly Without Prohibitory Order (2024)

• Context: Individuals assembled and demonstrated against the police without any prohibitory order in place.

• Ruling: The Court held that in the absence of a Section 144 order, such assemblies are not illegal and do not constitute an offense. 

4. Punjab & Haryana High Court – Peaceful Protest (2023)

• Context: Political leaders were booked for allegedly violating Section 144 orders during a peaceful protest.

• Ruling: The Court quashed the FIRs, stating that peaceful protests do not amount to an offense under Section 188 IPC, even if conducted during Section 144 restrictions. 

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🔍 Key Takeaways

• Specificity Required: Courts have consistently held that orders under Section 144 must be specific and based on concrete evidence or reasoning. Blanket orders are generally disfavored.

• Protection of Fundamental Rights: The judiciary emphasizes the need to balance preventive measures with the protection of fundamental rights, such as the right to assemble and protest.

• Judicial Oversight: There is a clear trend of courts scrutinizing the use of Section 144 to prevent its misuse and ensure it is applied appropriately.

Key Case Law on Section 144 CrPC (relevant to Section 163 BNSS)

 

📚 Key Case Law on Section 144 CrPC (relevant to Section 163 BNSS)

✅ 1️⃣ Madhu Limaye v. Sub-Divisional Magistrate, Monghyr (1970) 3 SCC 746

• 🔹 Supreme Court held that Section 144 is not unconstitutional; it’s a reasonable restriction under Article 19(2) of the Constitution.

• 🔹 It’s meant for urgent prevention or speedy remedy, but cannot be used casually or routinely — the Magistrate must apply mind to whether immediate action is necessary.

✅ 2️⃣ Gulam Abbas v. State of U.P. (1981) 1 SCC 71

• 🔹 Section 144 orders are preventive, not punitive — they aim to prevent breaches of peace, not punish past behavior.

• 🔹 Court emphasized the Magistrate’s discretion but warned against using the section as a blanket prohibition without specific reasons.

✅ 3️⃣ Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta (1983) 4 SCC 522

• 🔹 The Court said reasonable apprehension is enough; actual violence need not occur.

• 🔹 However, the apprehension must be based on concrete material — vague or general fears are not enough.

✅ 4️⃣ Ramlila Maidan Incident (In re), (2012) 5 SCC 1

• 🔹 Supreme Court condemned police high-handedness under Section 144, saying peaceful protest is a constitutional right.

• 🔹 Magistrate’s power under Section 144 cannot override fundamental rights unless there is clear danger to public order.

✅ 5️⃣ Babulal Parate v. State of Maharashtra (1961) AIR SC 884

• 🔹 Held that urgency and immediacy are the key tests under Section 144.

• 🔹 Magistrate’s satisfaction must be genuine and well-founded; otherwise, the order can be challenged.

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✏️ Key Legal Principles Carried Forward into Section 163 BNSS, 2023

✅ Preventive, not punitive
✅ Must address urgency and immediate risk
✅ Must balance against fundamental rights (Article 19)
✅ Specific reasons must be recorded in the order
✅ Duration limited: 2 months + max 6 months extension by state

Sample Application under Section 163 BNSS, 2023

 

Sample Application under Section 163 BNSS, 2023

To,
The Executive Magistrate
[Office Address]
[District Name], [State]

Date: [Insert Date]

Subject: Application under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023, for issuance of urgent preventive order

Respected Sir/Madam,

I, [Your Name], son/daughter of [Parent’s Name], resident of [Full Address], respectfully submit this application under Section 163 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking urgent preventive action in the interest of public safety and tranquility.

Facts of the Case:

1. That there exists a situation in [mention locality/area] where [briefly describe the incident or condition — e.g., unlawful assembly, construction blockage, threat of communal tension, planned violent protest, obstruction on public road, etc.].

2. That the said situation is causing/likely to cause obstruction, annoyance, injury, or danger to human life, health, safety, or is likely to disturb public tranquility, and immediate preventive measures are required.

3. That despite repeated requests/complaints to the concerned authorities, no effective remedial steps have been taken so far, and there is a risk of the situation escalating into a law and order issue.

Prayer:

In view of the above, I kindly request your good office to:

• Exercise powers under Section 163 BNSS, 2023;

• Pass an urgent written order directing [mention the specific party or general public, as applicable] to abstain from [mention the harmful act] or to take such measures as deemed necessary regarding the management of the concerned property/situation;

• Take any other appropriate action necessary in the interest of public safety, health, and peace.

Enclosures:

• Copy of ID proof

• Supporting evidence (photographs, complaints filed, witness statements, etc.)

I will remain grateful for your prompt and necessary action.

Thanking you,
Yours sincerely,
[Your Name]
[Your Contact Details]

Section 163 – Power to issue order in urgent cases of nuisance or apprehended danger

 

Section 163 – 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 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 this Sanhita, 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 tranquility, 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 opportunity of appearing before it either in person or by an advocate 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, it shall record in writing the reasons for so doing.

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This section empowers Executive Magistrates to issue immediate orders in urgent situations to prevent public harm or disturbances. It is analogous to the former Section 144 of the Code of Criminal Procedure (CrPC), 1973, and is designed to address scenarios involving potential threats to public safety, health, or tranquility.

Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023

 Section 163 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 is essentially the updated version of old Section 144 CrPC, which allows the Executive Magistrate to issue urgent orders to prevent danger to public peace, safety, or health.

✅ Who can issue the order?

• District Magistrate

• Sub-Divisional Magistrate

• Any Executive Magistrate specially empowered by the state

✅ Why can they issue it?

• To prevent obstruction, annoyance, injury

• To prevent danger to life, health, or safety

• To avoid disturbance of public tranquility

• To stop riots or affrays

✅ How long does the order last?

• Initially: up to 2 months

• Extendable by the State Government: up to 6 more months if necessary

✅ What kind of orders?

• Directing someone to abstain from certain acts

• Directing someone to manage/control certain property in their charge