Breach of Peace under BNSS

Source:  Meghalaya High Court 

Why in News? 

The Meghalaya High Court has ruled that an Executive Magistrate cannot issue an attachment order under Section 146 of the Criminal Procedure Code (CrPC) solely based on an inability to determine land possession.  

• In the case of Shri Minondro Arengh v. Talika T. Sangma, Justice B. Bhattacharjee emphasized that such orders require evidence of a likely breach of peace, as stipulated in Section 145 CrPC.  
• This ruling underscore the importance of adhering to procedural requirements in land dispute cases to protect parties' rights and maintain public order. 

What was the Background of Shri Minondro Arengh v. Talika T. Sangma? 

• The respondent (Talika T. Sangma) filed an FIR on 05th February 2021 at Ampati Police Station, alleging that the petitioner (Shri Minondro Arengh) was attempting to forcibly occupy her land in Ichakuri, Ampati, Southwest Garo Hills District. 
• The police forwarded a report to the Executive Magistrate, under Section 145 of CrPC and the Executive Magistrate initiated proceedings. 
• On 20th April 2022, the Executive Magistrate passed an order: 
  • Directing the attachment of the disputed land under Section 146(1) CrPC. 
  • Prohibiting both parties from engaging in any economic activities on the land. 
  • This prohibition was to remain in effect during the attachment period or until the Garo Hills Autonomous District Council (GHADC) completed the process and demarcation. 
• The petitioner challenged this order, on the ground that: 
  • The Executive Magistrate did not follow the provisions of Sections 145 and 146(1) CrPC. 
  • The order was passed without recording the likelihood of a breach of peace between the parties over the land's possession. 
•  The respondent argued that: 
  • The proceedings were initiated based on a police report indicating an apprehension of breach of peace. 
  • The attachment order was necessary due to the existing situation and a previous order dated 21st February 2020 concerning a boundary dispute between the parties. 

What were the Court’s Observations? 

• The Court held that the order of attachment under Section 146(1) CrPC was unjustified due to: 
  • The absence of a recorded likelihood of breach of peace. 
  • The principle that the inability to determine possession alone is insufficient grounds for attachment. 
• Justice B. Bhattacharjee stated that the learned Executive Magistrate erred in failing to record any finding based on the existing factual situation to ascertain which party was in possession of the disputed land at the relevant point in time. 
• The Court held that a prerequisite for a valid order of attachment under Section 146(1) CrPC is the existence of a situation as contemplated under Section 145(1) CrPC, specifically, a likelihood of breach of peace between the parties over possession of the disputed land. 
• The Court emphasized that Section 145(4) CrPC mandates that the question of possession must be decided without reference to the merits or claims of any party to a right to possess the subject of dispute. 
• In proceedings under Section 145 CrPC, disputes regarding possession must be adjudicated based on statements submitted, evidence recorded, and hearings of the parties, rather than on documentary proof of ownership. 

What is Section 164 of BNSS? 

• About: 
  • Section 164 of the Bharatiya Nagarik Suraksha Sanhita, 2023 deals with Procedure where dispute concerning land or water is likely to cause breach of peace. 
  • Earlier it was dealt with Section 145 of CrPC. 
  • Section 164(1) of BNSS states that 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. 
  • Section 164(4) of BNSS states that 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. 
    • It provides 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). 
• Condition for Section 164 of BNSS  
  • Conflict between parties. 
  • This conflict has the potential to breach peace (disturb public order). 
  • The subject of the dispute involves:  
    • Structures 
    • Commercial areas 
    • Fishing grounds 
    • Agricultural produce 
    • Property boundaries 
    • Rental income 
    • Financial gains from the property 
  • The claimed possession took place within a 60-day period prior to the Magistrate's initial directive. 
  • The matter falls under the Magistrate's legal authority to decide. 
• Case Law 
  • Mohd Shakir v. State of Uttar Pradesh (2022): Supreme Court had observed that while dropping the proceedings under Section 145 CrPC because of the pendency of civil litigations, a Magistrate cannot make any observations or return any findings as regards rights of the parties qua the property in question. 

What is Section 165 of BNSS? 

• Section 165 of BNSS deals with the power to attach the subject of dispute and to appoint the receiver. 
  • Earlier it was dealt with in Section 146 of CrPC. 
• It states that 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 
  • It provides 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. 
• Once the Civil Court seized the matter, the proceedings under Section 165/164 of BNSS cannot proceed and must end.  
  • The interse rights of the parties regarding title or possession are eventually to be determined by the Civil Court.