Section 164 BNSS: Procedure where dispute concerning land or water is likely to cause breach of peace (Formerly Section 144A CrPC)

Section 164 of Bharatiya Nagarik Suraksha Sanhita, 2023: Procedure where dispute concerning land or water is likely to cause breach of peace

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

(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 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.

(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 Sanhita for the service of 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, 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 of dispute, 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 powers of the Magistrate to proceed under section 126.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Inquiry Sec 2(1)(g) Investigation Sec 2(1)(h) Victim Sec 2(1)(w)

Legal Commentary & Landmark Judgments: Section 164

Section 164 of the BNSS, 2023 prescribes the procedure where a dispute concerning land or water is likely to cause a breach of the peace, empowering Executive Magistrates to decide actual physical possession (replacing Section 145 CrPC).

Dispute Concerning Land or Water: Dispute concerning boundaries, buildings, markets, fisheries, crops, or land rents.
Likelihood of Breach of Peace: Police report or information satisfies the Magistrate that breach of peace is imminent.
Two-Month Possession Rule: Magistrate decides which party was in actual physical possession on the date of preliminary order, or within two months prior thereto if forcibly dispossessed; title is irrelevant.

Key Landmark Precedents:

Mathuralal v. Bhanwarlal (1979) 4 SCC 665: The 3-Judge Bench held that Section 145 CrPC (Section 164 BNSS) aims strictly to preserve public peace by maintaining actual physical possession; the criminal court does not adjudicate title, which belongs exclusively to civil courts.
Ashok Kumar v. State of Uttarakhand (2013) 3 SCC 396: The Supreme Court held that where a civil suit is already pending and interim orders have been passed, initiating Section 145 proceedings is an abuse of process; civil court decrees prevail.
R.H. Bhutani v. Miss Mani J. Desai AIR 1968 SC 1444: Settled that if a party is forcibly and wrongfully dispossessed within two months prior to the preliminary order, the magistrate must treat them as if they were in possession on that date.

Courtroom Practice & Strategic Litigation Guidance:

Linchpin litigation rule under *Ashok Kumar*: If your client has already obtained an injunction or filed a civil suit regarding the property, move the SDM to drop Section 164 proceedings immediately. Section 164 cannot be used as a shortcut to bypass civil court orders.