SCHOOL OF LAW

SUBJECT- CRIMINAL PROCEDURE CODE

TOPIC- MAINTENANCE OF PUBLIC ORDER AND

TRANQUILITY

SUBMITTED TO: SUBMITTED BY:

[Link] SINGH POOJA MITTAL

ASSISTANT PROFESSOR BBA LLB 4 TH YEAR

190313

INTRODUCTION
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 processions1.

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.

UNLAWFUL ASSEMBLY:
An unlawful assembly is an assembly of three or more persons who, with intent to carry out any
common purpose, assemble in such a manner or so conduct themselves when they are assembled
as to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that
they will disturb the peace tumultuously; or will by that assembly needlessly and without
reasonable cause provoke other persons to disturb the peace tumultuously.
“Persons who are lawfully assembled may become an unlawful assembly if they conduct
themselves with a common purpose in a manner that would have made the assembly unlawful if
they had assembled in that manner for that purpose

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

When an order is passed for dispersal, it shall be the duty of the members of such assembly to
disperse accordingly.

After an order for dispersal is issued and such assembly disobeys the order and do not disperse,
or, even if not so commanded, the assembly shows determination of not to disperse,then
any Executive Magistrate or Officers as empowered under subsection (1) of section 129 may use
force in order to disperse such unlawful assembly.

1
Section 31, Police Act 1861
If necessary, even if any male person is not an officer or member of armed force but acting as
such, may arrest or confine the members of such unlawful assembly and then they may
be punished by law.

The authority to disperse an unlawful assembly has been granted to the Executive Magistrate or
the officer-in-charge of a police station. In case of absence of the officer-in-charge, a command
can also be given by a police officer, not below the rank of sub-inspector.

In the landmark judgement of State of Karnataka v. B. Padmanabha Behya, it was held by the
Supreme Court that when there is an event of firing by the police without lawful orders of
authority, the dependents of the deceased are entitled to compensation by the State.

Section 130: Use of armed forces to disperse the assembly

Section 130 of the Code of Criminal Procedure comes into play when the unlawful assembly
cannot be dispersed otherwise.

 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.
 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 the public security in accordance with the orders of the Magistrate. He
has also power to have them punished according to law.
 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.
Section 130 entitles the lawful authority 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

To maintain public order and tranquillity, certain armed force officers are also empowered to
disperse assembly according to the procedure laid down under Section 131 of the Code of
Criminal Procedure.

Section 131 of the Code of Criminal Procedure reads as follows.

When the public security is manifestly endangered by an unlawful assembly and no

communication can be made with the Executive Magistrate, in such cases certain armed force
officers are empowered to disperse assembly with the help of the armed forces under his
command, and may arrest and confine any persons forming part of it.

While such armed force officer is acting under this section and it becomes practicable for him to
communicate with an Executive

Magistrate, he shall do so. After communication is established, he shall henceforth obey the
instructions of the Magistrate regarding whether he shall or shall not continue such action.

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 tranquillity can be
maintained more efficiently.

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

Section 132 of the Code of Criminal Procedure gives protection to the prosecution for any act
done under section 129 to 131 of the Code of Criminal Procedure except with the sanction of
State or Central Government.

Section 132 states the Protection against prosecution for acts done under preceding sections.
 1. 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-
(a) when such person is an officer or member of armed forces than with the sanction of the
Central Government;

(b) in any other cases sanction of the State, the government is required.

1. (a) The acts done by an executive magistrate or police officer under any of the said
sections should be with good faith.
(b) any person doing any act in good faith in compliance with requisitions laid down under
section 129 or section 130.

(c) when an officer of the armed forces is acting in good faith under section 131.

(d) Any member of the armed forces shall not be deemed to have committed an offence when he
has done any act in obedience to any order issued and which he was bound to obey such order.

(3) In this section and in the preceding sections of this Chapter,-

(a) the expression” armed forces” in this section refers to the military, naval and air forces,

(b)the term ” officer“, used under this section is in relation to the armed forces. Any person
commissioned, gazetted or in pay as an officer of the armed forces is considered as an officer. It
also includes a junior commissioned officer, a warrant officer, a petty officer, a non-
commissioned officer and a non- gazetted officer;

(c) a person in the armed forces other than an officer is considered as a “member” referred under
this section.
Essentials for benefit under Section 132

For having the benefit granted under section 132 of the Code of Criminal Procedure, the officer
has to fulfil certain essential conditions:

1. There was an unlawful assembly.

2. That assembly was commanded to be dispersed.

3. The assembly did not disperse on the command to disperse.

4. Or, if no command was given the conduct of assembly seemed determined not to
disperse.
In the above circumstances, the officer had to use force to disperse the assembly.

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.

Public nuisance covers a large range of minor crimes that may threaten the health, morals or
safety or the welfare of the community at large. The violator may be punished with a criminal
sentence or fine or both. A defendant in such cases is often asked to remove the nuisance.

For example a person that may have damaged a road or public property may be asked to pay for
the damages caused. Public nuisance may also be something that may affect the public health at
large for example, keeping uncovered garbage in the open in a neighborhood or keeping a
malarial pond.
Some other examples of public nuisances include burning of fireworks in a public place putting a
lot of people at risk, storing explosives, practicing medicine without a license or harboring a
dangerous animal. Others such as illegal liquor stores or unlicensed prize fights are examples of
public nuisance that interferes with public morals. The earlier example of obstructing a highway
or creating a condition to make travel unsafe is examples of threatening the pubic convenience.

In Velan Pakkiri versus Subbayan2 a view was taken that the essence of public nuisance is that it
causes damage, injury or annoyance to the public or people in general but an obstruction that
may be aimed at preventing only a particular class of people from using a highway or public
place in a particular manner does not and cannot amount to public nuisance as it does not cause
nuisance to the entire “public” in general.

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

2
Velan Pakkiri versus Subbayan (19) 6 AIR 1919 Mad. 674
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

Public Nuisance Causing Some Advantage or Convenience

This means that it is no defence to a charge of committing a common nuisance that the act in
question was done to prevent or mitigate some harm to the accused’s interest or to protect his
own lands and crops.3 Slaughtering of cattle cannot be deemed to be a public nuisance, unless the
act is done in places and in a manner where it might prove to be a public nuisance. Mere sale of
meat or fish near or on a public road cannot be deemed a nuisance though the fact that such
exposure is offensive to the religious susceptibilities may be a matter for executive action. 4

3
Bharosapatak vs. Emperor (1912) CrLJ 183 (ALL)
4
3Supra note 3
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.