Dr.

Absarul Hasan Kidwai

DEPARTMENT OF LAW
ALIGARH MUSLIM UNIVERSITY, ALIGARH
CRIMINAL PROCEDURE CODE (BLLB-901)
B.A.LL.B. (HONS) IXth SEMESTER

UNIT – I
1. Maintenance of wife, children and parents SS-125-128 Cr.P.C.
Although Criminal Procedure Code is a procedural enactment, but it also confers some
substantive rights, the right of maintenance being one of the most important of such rights.
Legal provisions regarding Order for maintenance of wives and children are mentioned under
Chapter IX Section 125 to 128 of the Code of Criminal Procedure, 1973. Section l25 of the
Code gives effect to the natural and fundamental duty of a man to maintain his wife, children
and parents so long as they are unable to maintain themselves. This provision is a measure for
social justice and specially enacted to protect women and children.

Object and Scope

The proceedings under these sections are not punitive in nature. The object is not to punish a
person for neglect to maintain those whom he is bound to maintain but to prevent vagrancy by
enforcing liability by way of summary procedure to provide a speedy remedy to those who are
in distress. This is a secular provision as it does not make any distinction between persons
belonging to different religions or castes and it has no relationship with personal laws of the
parties. In Mohd Ahmed Khan v. Shah Bano Begum1, the SC held that the provisions of
section 125 applies to all. The rights of a destitute wife or a minor claiming maintenance in this
chapter and the remedies provided are essentially civil right.

Person Entitled to Get Maintenance (Section 125):

Section 125 which is the pivotal section of this Chapter, provides that following person are
entitled to get maintenance if any person having sufficient means neglects/ refuses to maintain–
a) His wife, unable to maintain herself, or b) His legitimate or illegitimate minor child, whether

1
Mohd Ahmed Khan v. Shah Bano Begum 1985 2 SCC 556

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

married or not, unable to maintain itself, or c) His legitimate or illegitimate child (not being a
married daughter) who has attained majority, where such child is, by reason of any physical or
mental abnormality or injury unable to maintain itself, or d) His father or mother, unable to
maintain himself or herself.

A Magistrate of the First Class may pass an order against such a person, ordering him to make
a monthly allowance for the maintenance of such child, father or mother, as the case may be,
at such monthly rate as such Magistrate thinks fit. In the case of a minor female child who is
married, if the Magistrate is satisfied that the husband of such a minor female is not possessed
of sufficient means, an order can be made against the father of the child to make such allowance
until she attains the age of majority.

Order for maintenance of wife and children

Wife

As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses
to maintain his wife, unable to maintain herself, a Magistrate of the first class may, upon proof
of such neglect or refusal, order such person to make a monthly allowance for the maintenance
of his wife at such monthly rate, as such Magistrate thinks fit, and to pay the same to such
person as the Magistrate may from time to time direct.

The term ‘wife’ appearing in Section 125(1) means only a legally wedded wife and therefore a
marriage prove illegal cannot give a wife any right to get maintenance2. The legality of the
marriage would be governed by the personal laws applicable to the parties. If the fact of legally
valid marriage is disputed, the applicant will have to prove marriage. According to explanation
(b) to Section 125(1), the term ‘wife’ includes even a divorced wife but has not remarried. A
divorced wife cannot exist unless she was a legally wedded wife.

Under the law the burden is placed in the first place upon the wife to show that the means of
her husband are sufficient. There is no dispute that the appellant has the requisite means. But

2
Savitaben Somabhai Bhatiya Vs. State of Gujarat, 2005 Cr LJ 2141 (SC)

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Dr. Absarul Hasan Kidwai
Department of Law
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there is an inseparable condition which has also to be satisfied that the wife was unable to
maintain herself.

Child:

According to Section 125(1)(b) of the Code of Criminal Procedure, if any person having
sufficient means neglects or refuses to maintain his legitimate or illegitimate minor child,
whether married or not, unable to maintain itself or as per Section 125(1)(c) of the Code, his
legitimate or illegitimate child (not being a married daughter) who has attained majority, where
such child is, by reason of any physical or mental abnormality or injury unable to maintain
itself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of such child, at such monthly rate,
as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from
time to time direct.

A child, whether legitimate or illegitimate, whether married or unmarried can seek maintenance
from his/her parents. However, where the child is suffering from physical or mental
abnormality, he/she can claim maintenance even after attaining majority if such person is
unable to maintain herself/himself. A minor married girl can claim maintenance either from
her husband or her father or both3. According to first proviso appended with the section if the
husband of the minor married female child is not in possession of sufficient means, the father
of such female child will be required to make allowance for her maintenance. However a
married daughter who has attained the age of majority is not entitled to claim allowance from
her father as she would then come under the category of wife and shall seek maintenance from
her husband.

Essential conditions for granting maintenance:

Sufficient means to maintain:

According to Section 125(1) of the Code of Criminal Procedure, the person from whom
maintenance is claimed must have sufficient means to maintain the person or persons claiming

3
Jagdish Jugtawat v. Manju Lata, (2002) 5 SCC 422

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

maintenance. If a man is healthy and able-bodied, he must be held to possess the means such
as real property or definite employment.

Neglect or refusal to maintain:

The person from whom maintenance is claimed must have neglected or refused to maintain the
person or persons entitled to claim maintenance.4

Person claiming maintenance must be unable to maintain himself or herself:

The person claiming maintenance must be unable to maintain himself or herself.

In case of maintenance claimed by wife from her husband-

1. She must not be living in adultery

2. She must not refuse, without just ground, to live with her husband,

3. She must not be living separately by mutual consent.

Interim maintenance:

As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the
pendency of the proceeding regarding monthly allowance for the maintenance under Section
125(1) of the Code, order such person to make a monthly allowance for the interim maintenance
of his wife or such child, father or mother, and the expenses of such proceeding which the

4
Amarendra Kumar Paul v. Maya Paul, (2009) 8 SCC 359
5
Abdulmunaf v. Salima 1979 Cr LJ 172

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Magistrate considers reasonable, and to pay the same to such person as the Magistrate may
from time to time direct.6

Procedure –

Legal provisions regarding Procedure for Maintenance are mentioned under section 126 of
the Code of Criminal Procedure, 1973. The proceedings under Section 125 are in the nature of
civil proceedings, the remedy is a summarily one and the person seeking the remedy is
ordinarily a helpless person. So the words in Section 126(1) should be liberally construed.

(1) An application for maintenance under Section 125 of the Code may be filed in the court of
first class Magistrate in any district

a. Where he is, or

b. Where he or his wife resides, or

c. Where he last resided with his wife, or as the case may be, with the mother of the illegitimate
child.

No period of limitation has been prescribed for filing an application for maintenance.

(2) All evidence in such proceedings shall be taken in the presence of the person against whom
an order for payment of maintenance is proposed to be made, or, when his personal attendance
is dispensed with, in the presence of his pleader, and shall be recorded in the manner prescribed
for summons-case. However, if the Magistrate is satisfied that the person against whom an
order for payment of maintenance is proposed to be made is willfully avoiding service, or
willfully neglecting to attend the Court, the Magistrate may proceed to hear and determine the
case ex parte.

6
Satish Chandra Gupta v. Anita, 1994 A Cr R 631

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

(3) The Court in dealing with applications under Section 125 shall have power to make such
order as to costs as may be just. An inquiry under Sections 125 and 126 is not a trial, nor can
the result of such inquiry be considered as a conviction or acquittal.

Sec. 127 empowers the Magistrate to alter or modify the order of the maintenance on of (i) a
change in the circumstances of the party receiving the maintenance, or (ii) any decision of
competent civil court. The party entitled to alteration of the order, can always move to the
Magistrate whenever there is a change of circumstances.

Sec. 128 deals with enforcement of order of maintenance which states as follows: A copy of
the order of maintenance or interim maintenance and expenses of proceeding, as the case may
be shall be given without payment to the person in whose favour it is made, or to his guardian,
if any, or to the person to whom the allowance for the maintenance or the allowance for the
interim maintenance and expenses of proceeding, as the case may be is to be paid; and such
order may be enforced by any Magistrate in any place where the person against whom it is
made may be, on such Magistrate being satisfied as to the identity of the parties and the non-
payment of the allowance or as the case may be expenses, due.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

2. Maintenance of Public order and Tranquility SS- 133-144 Cr.P.C.

a. Public Nuisance SS – 133 to 139

The Code of Criminal Procedure, 1973 deals with provisions to deal with the matters of public
nuisance. Section 133,134, 135, 136, 137, 138, 139, 140, 141, 142 and 143 deals with the
procedures to be followed in matters related to public nuisance and the Urgent cases of
Nuisance or apprehended danger has been dealt under section 144.

Section 133: Conditional Order for removal of nuisance

According to Section 133, a conditional order can be passed by a District Magistrate, Sub-
Divisional Magistrate or any Executive Magistrate empowered by the state for removal of
public nuisance.

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 health or physical comfort of the community.

3. The construction of any building, or disposal of any substance, as it is likely to occasion

4. A building, tent, or structure, or a tree as it is likely to cause damage or injury to a

5. An unfenced tank, well or excavation near a public place or way.

6. A dangerous animal that requires confinement, destruction or disposal.

When a proceeding is instituted under section 133 of Cr.P.C, a civil suit can continue parallel
without any bar as held in the case of Rakesh Kumar v. State of U.P.7

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

7
1994 CriLJ 289

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

obstruction is to be removed or resolved. The order duly made under this section by a
magistrate shall not be called in question in any civil court.

The magistrate can make a conditional order against the following person.

1. The person causing obstruction or nuisance.

2. The person carrying on such trade or occupation which is likely to cause a public
nuisance.

3. The person keeping any such goods or merchandise which can be injurious to health or
physical comfort of the community.

4. The person who owns possesses or controls such as building, tent, structure, substance,
tank, well or excavation.

5. The person owning or possessing such tree or animal which is dangerous and can cause
injury or damage.

The conditional order can be passed under section 133:

1. To remove the obstruction or nuisance.

2. To abstain from carrying on such trade or occupation.

3. To remove such goods or merchandise causing nuisance or, to regulate or keep in the
manner as directed by the magistrate.

4. To remove, repair or support such building, tent, structure or tree.

5. To fence such tank, excavation or well.

6. To destroy, confine or dispose of such dangerous animal as manner prescribed in the

Section 134: Service or notification of order

According to section 134 of the Code of Criminal Procedure, the order shall be served on the
person against whom it is made in the manner which is followed for service of summons. If
such an order cannot be served, it shall be notified by proclamation or published in such manner
as the state government directs.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Section 135: Person to whom the order is addressed to obey or show cause

According to section 135, When an order is served against a person, he is left with two
alternatives. He should have to either-

1. Carry out the order by performing in accordance with the directions given in the order.

2. he may show cause against the order issued.

These alternatives are mutually exclusive. 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 8, 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 lays down the procedure where public rights are denied. Procedures laid down
in section 137 are mandatory before taking recourse on the procedure laid down under section
138 of the Code of Criminal Procedure.

The requirements of this section are as follows.

 Firstly, 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.

8
1987 Cr LJ 2071 (A.P)

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

 Thirdly, such evidence shall be legal evidence and shall support his argument of denial
of public right in question.

If all these above-said conditions are satisfied, the Magistrate’s Jurisdiction to continue the
proceeding is ceased.

As held in the case of Mani Mathai v. Uthuppu9, on denial of public right, the magistrate shall
conduct a preliminary inquiry.

Section 138: Procedure when he appears to show cause

According to section 138, the magistrate shall take evidence as in summon 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 originally or subject to modification as required, is
reasonable and proper

2. If the magistrate is not satisfied, further proceedings shall not be taken in the case.

The proceeding cannot be dropped without taking evidence. It is the duty of the Magistrate to
take evidence as the ground of order he has to make. As held in the case of M.L. Gopalaswamy
v. State of Mysore10, it would be illegal to make absolute a conditional order without recording
evidence and this requirement is mandatory.

Section 139 of the Cr.P.C empowers the magistrate to direct local investigation for the purpose
of an inquiry under section 137 and 138. The power of magistrate regarding procedure and
direction investigation has been given under section 140 of the Code of Criminal Procedure.

Section 141: Procedure to be followed when order is made absolute and consequences of
disobedience

According to section 141 of the Code of Criminal Procedure, the procedure has been laid down
to be followed on order made absolute and consequences of disobedience of order made under

9
1985 KLJ 802
10
1974 CriLJ 1119

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

section 136 or section 138. The magistrate shall issue a notice when an order is made absolute
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 building, goods, other immovable or any movable property. But the powers granted under
this section should be used in good faith.

Section 142: Power to issue an injunction

Where an order is made by a magistrate under section 133 where immediate measure is
required to prevent any imminent danger or serious injury, an injunction can be issued against
whom the order is made under section 142 of Cr.P.C. The magistrate may himself use or cause
to be used such means to prevent such danger or injury if there is default on the part of such
person. The order issued under this section such be made with good faith.

A District Magistrate or a Sub-Divisional Magistrate, or any other Executive Magistrate has

b. Urgent case of Public Order S 144 Cr.P.C.

Section 144 envisages the powers of a magistrate in urgent cases of nuisance. These powers
provide directions in dealing with situations that cause danger to human life, disturb public
tranquillity, result in riots or affray. These situations have the potential to create unrest or
danger to public peace and tranquillity in any area, due to any disputes.

In the case of Radhe Das v. Jairam Mahto11, there was a dispute over a property in which
Magistrates passed the order and restricted the defendant from entering the property. Petitioners
applied for the restriction of defendants. Defendants also applied for the claim and to restrict
the petitioner from entering into it. It was subsequently granted by the Magistrate. The
defendants claim that this order is violating their right over the property. The court held that
the action should be taken to prevent public peace and tranquillity and the individual rights of
a person must be given away for the greater benefit.

11
123 Ind Cas 73

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

1) The orders under Section 144 (1) can be issued by:

 District Magistrate;

 Sub-Divisional Magistrate; or

 Executive Magistrate specially empowered by the State Government.

A magistrate can start the proceedings if there is an immediate or speedy remedy is desirable
in the following situations mentioned under this clause:

 Danger to human life;

 Disturbance to public tranquillity;

 Riot; or

 Affray.

2) Ex-Parte decisions can be taken in cases of emergency under Section 144(2)

If there is an emergency or in any circumstances where notice cannot be served to that person
against whom the order has directed, be passed ex parte.

3) Orders passed by Magistrate have an expiry date under Section 144 (4)

Such orders expire within 2 months from the date the order has been made or issued.

But in the exceptional cases if the State Government considers it necessary by notifications, it
can direct that an order made by the magistrate which is to be enforced for 2 months will
continue for a period, not exceeding 6 months.

4) Alteration can be made under Section 144(5)

Any alteration can be made in the order under this section. It can be made by the magistrate
himself, or by a magistrate subordinate to him or by a predecessor in his office. Such
alteration will be made either on an application by the aggrieved person or even the magistrate
himself can do so.

Procedure

A Procedure needs to be followed by the Magistrate, when section 144 is imposed:

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

1) Against whom the order has been passed under Section 144(7)

The aggrieved person against whom the order has been passed if he approaches the court under
sub-section (5), he will be given the earliest opportunity of hearing.

On the other hand, if his application has been rejected wholly or in part either by the State
Government or by the Magistrate, the reasons are to be given the reason in writing.

Sub-section 7 provides that the proceedings should be judicial in nature and evidence would
be recorded in an open court before the alteration or a rescinding order is passed.

Certain restrictions can be imposed by a magistrate:

 Section 144 of CrPC restricts the assembly of five or more people in a public place with
a common object. As per the code, each person of that ‘unlawful assembly’ will be
booked under Section 143 of IPC. Unlawful Assembly is defined under Section 141 of
the Indian Penal code. An assembly of five or more persons with a common illegal
object is said to be an unlawful assembly. And if the common object of those 5 people
composing that assembly is any of the five objects declared illegal under Section 141
of IPC:

1. To overawe Government by criminal force;

2. To resist the execution of a law or legal process;

3. To compel any person to do illegal acts;

4. To commit an offence; or

5. Forcible possession or disposition of property.

 It restricts the handling of any kind of weapon in the area where Section 144 is imposed.
A magistrate can pass an order or by a public notice, declare restrictions in carrying of
arms in procession, or holding of, or taking in any mass drill or mass training with arms
in a public place. If he has a reason to believe that it is necessary for:

1. Public safety;

2. Preservation of public peace; or

3. Maintenance of public order.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects which
covers a knife used in a kitchen. If any person violates the and is still engaged in the activity,
then he can be detained. Whereas this section doesn’t restrict police officials to carry guns.
Police and other security personnel are the only ones who are allowed to carry weapons in the
area where Section 144 is imposed.

 As per the Section 69A of the Information Technology Act, the government has the
right to shut down the internet. Section 144 IPC gives power to a magistrate to stop
internet access in a region.

In the case of Gaurav Sureshbhai Vyas v. State of Gujarat12, the petitioner had challenged
shutting down of the internet in parts of Gujarat. He argued that the government should
invoke Section 69A of the Information Technology Act that allows the government to block
certain sites for the sovereignty and integrity of India. And the internet should not be blocked
by the government as a whole in the state.

The court held that the government had not completely blocked the internet. People had access
to it through broadband or wifi. It was held that the Section 69A of IT Act was meant to block
certain sites, but under Section 144 of CrPC, the government can issue directions to a person
responsible for extending the internet access. The court held that in case of law and order
situation, the government can ban internet access to bring the situation under control.

Need for the Section

Section 144 is implemented in a certain region in cases of nuisance or if there is a danger that
certain situation will make the situation worse or damage the property or human life. It imposes
certain restrictions on the personal liberty of the people. If there is an apprehension of danger
to human life or any disturbance to public peace and tranquillity. It restricts public gatherings
to prevent protests or riots. It prevents people from meeting at public places or from carrying
dangerous weapons or restricts carrying any mass drills or mass training with arms in public.
The magistrate has certain powers to deal with the urgent cases of nuisance and apprehended
danger. Orders can be passed by the magistrate under Section 144 of CrPC and can impose
certain restrictions in cases where it is necessary.

12
W.P. (PIL) No. 191 Of 2015

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Such restrictions will be imposed after the assessment of the situation in the area or region due
to some conflict, which has the power to cause danger to public tranquillity. To prevent crime
is the duty of administration and to safeguard the law and order in society.

Landmark Judgments

1) Ramlila Incident v. Home Secretary, Union of India13

The Supreme court had criticised the decision of the centre for the imposition of Section 144
in Ramlila maidan against the sleeping crowd.

The Hon’ble court held that such provision which is imposed by the centre can only be used in
grave situations, for maintaining public order.

2) Babulal v.State of Maharashtra14

The Hon’ble Supreme Court held that a magistrate can exercise the power conferred upon
him where there is an apprehension of danger. But he needs to satisfy that the precautions
undertook by him were essential to protect public safety.

As per the four-fold test in section 144, it is not about likelihood or tendency. The Magistrate
should be satisfied with certain immediate measures that should be taken to prevent the danger,
and protect public safety. Powers vested upon him can not only be exercised in the presence of
danger but can also be exercised in cases where there is an apprehension of danger.

So, preventive measures taken by a magistrate are justified.

3) Romesh Thapar v State of Madras15

In this case, the Hon’ble Supreme Court held that a line should be drawn between public order
and public tranquillity. There are different forms of public disorders so a boundary should be
drawn between the serious and aggravated forms. Which of them are serious should be defined
and this can easily be inferred by determining which one of them is a threat to a state.

13
(2012) 5 SCC 1
14
1961 AIR 884
15
1950 SCR 594

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Dr. Absarul Hasan Kidwai
Department of Law
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c. Preventive Action of Police S. 149 – 151 Cr.P.C.

The primary object of criminal procedure is to provide machinery for the administration of
substantive criminal law. Therefore, the Code enacted elaborate pre-emptive measures to
provide for any preventive action to be taken by a police officer to prevent the commission of
a cognizable offence.

These matters are contained in Sections 149 to 151 of the Code.

Section 149 of the Code provides that “every police officer may interpose for the purpose of
preventing, and shall, to the best of his ability, prevent the commission of any cognizable
offence”. This section implies that a police officer is empowered to take any preventive action
to stop a cognizable offence from being committed. A cognizable offence, as defined
under Section 2 (c) of the code, means “an offence for which the police has the power to arrest
and investigate without the written authority of the Magistrate”.

A general reading of the provision makes it categorical that the powers under this provision are
very wide. The use of the words “to the best of his ability” signifies that the section can be used
to arrest and detain a person in custody, to search any place r elated to the commission of a
cognizable offence and require any person to be interrogated for the purpose of prevention of
the crime.

It may be noted that the section uses the word “shall” in the provision. It implies that it is not
the power or right of the police officer to prevent a cognizable offence but a binding duty,
breach of which can result in departmental proceedings. In Ayyappakutty v. State16, the court
held that “display of photos of criminals are evidently preventive action which the police could
resort to under the code”.

Further, Section 150 provides that when an information with respect to an intention or design
to commit an act which shall be a cognizable offence under the Code, is received by a police
officer, such officer should transmit the information to his superior officer or any other officer
whose duty is to prevent and take cognizance of such offences (usually, the officer in charge
of a police station). The code vests power to arrest and investigate upon an officer of certain
specific rank, for instance Sub-inspector.

16
Ayyappakutty v. State, 1987 Cri. L.J 1593 (Ker).

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

However, it is possible that at the time when the information is received the officer in charge
(Inspector or Sub-inspector, as the case may be) and all the sub-inspector of police are absent
from the station house and the information may be recorded by an officer of a junior rank (such
as a constable or Assistant Sub-inspector). Thus, since such officers have not been empowered
to take action under the code, it is their duty to transmit information to the police officers to
whom he is subordinate.

Section 151 empowers a police officer “to make an arrest without orders from a Magistrate and
without a warrant, the person designing the commission of a cognizable offence, if it appears
to such officer that the commission of the offence cannot be otherwise prevented”.
Thus, Section 151 empowers the police officers with similar powers as in the investigation of
a cognizable case.

For the application of Section 151, the following essentials or requirements must be proved:

 The officer must have substantial knowledge of the design to commit an offence,
 The offence must be a cognizable offence according to Schedule 1 of the code,
 The arrest must not be the first recourse to prevent the offence,
 The officer must have a reasonable belief that the commission of the offence cannot
otherwise be prevented.

The Supreme Court has held that if the requirements for the exercise of power under Section
151, Cr.P.C. are not fulfilled and the person is arrested, the arresting authority may be exposed
to proceedings under the law.17 It has further been said in Manikandan v. SI of Police18 that a
person arrested on a mere suspicion cannot be said to be a person against whom commission
of a cognizable offence or non-bailable offence is alleged or made out and so cannot, without
more, be remanded to judicial custody and should be enlarged on bail treating the case as that
of a bailable offence.

The rules laid down in the code for arrest shall apply mutatis mutandis to arrest under this
provision as well19. Section 151 (2) provides that “no person arrested under Section 151 (1)
shall be detained in custody for a period exceeding twenty- four hours from the time of his

17
Ahmed Noormohmed Bhatti v. the State of Gujarat, (2005) 3 SCC 647.
18
Manikandan v. SI of Police, 2008 Cri. L.J 1338 (Ker).
19
Shyam Dattaray Beturkar v. Executive Magistrate, Kalyan, 1999 Cri. L.J 1338 (Ker).

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

arrest unless his further detention is required or authorized under the provisions of the
code”. This provision is in consonance with Section 57 of the code which provides for the
procedure after arrest in general. The section has to be read with Sections 76 and 167 of the
code.

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Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

3. Dispute of Immovable Property S. 145 to 148 Cr.P.C.

Section 145 to 148 of the Criminal Procedure deals with the procedures when there is likely to
be a breach of peace and public order due to a dispute relating to immovable property.

Section 145: Breach of peace by a dispute regarding land and water

Section 145 basically deals with disputes regarding possession. The main objective of this
section is to prevent any breach of public peace by maintaining possession of one or the other
party which the court finds has the immediate possession before dispute unless the actual rights
are decided by the civil court.

Under this section, when a report of police officer or information of dispute which is likely to
cause breach of peace concerning land, water or boundaries is brought before the Executive
Magistrate and he is satisfied by such report or information, he shall make a written order
requiring the parties to attend his court either in person.

According to subclause (3) of this section, the service of order is to be done as the procedure
laid down for the service of summons under the Code of Criminal Procedure.

There must be an apprehension of breach of peace and public order for the magistrate to pass
preliminary order. As held in the case of Ram Pal Singh v. Bhagelu20, a magistrate is not
bound to give preliminary order if he/she finds that there is no apprehension of breach of peace.

Before the Magistrate passes the final order, both parties should be allowed to put forward their
evidence before the court. As held in the case of N. A. Ansary v. Jackiriya21, the opportunity
to both parties for producing evidence before the court is mandatory and if the opportunity is
not given, the proceeding is been vitiated.

The right under section is not merely procedural rights but certain substantive rights as well
and as held in the case of Dhanbar Ali v. Haripada Saha22, the procedures laid down under
this section have an integral connection with the enjoyment of the immovable property and it
should not be dealt lightly by the trial court.

20
1977 CriLJ 462
21
1991 CriLJ 476
22
1976 CriLJ 1924

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

Section 146: Attachment and appointment of a receiver

After making an order under section 145, the magistrate can anytime order under section
146 for attachment of the subject in dispute and appointment of a receiver if:

 The Magistrate considers the case to be of an emergency

 he decides that none of the parties was in the possession as referred under section 145

 He is unable to satisfy himself that which of either party was in possession of the
property in dispute.

When there is no longer felt that there are chances of breach of peace, the order of attachment
can be withdrawn at any time by the magistrate.

When a receiver is subsequently appointed by the civil court for the subject in dispute:

 The Magistrate shall issue an order against the receiver appointed by him to hand over
the possession to the receiver appointed by the civil court.

 Thereafter, discharge the receiver appointed by him.

 Make any other order as may be just.

In the case of Ranjit Singh v. Moti Lal Katiyar23, it was held that the power should be exercised
by the magistrate with due care and diligence and it should be exercised in limited cases when
immediate action is required to maintain peace and prevent any breach of public order.

Before an order of attachment is passed, serving notice to the opposite party is not mandatory
as an opportunity of hearing needs to be exempted in emergency cases as held in Krishna
Chandra Patel v. Khela Kuri Patel.24

Section 147: Dispute regarding the right of use land or water

Section 147 of Cr.P.C acts as an amplification of section 145. This section empowers
the executive magistrate to issue a written order against the parties to appear before the court

23
(1988) 25 ACC 26
24
1996 CrLJ 3918 Ori

Prepared by MSK
Dr. Absarul Hasan Kidwai
Department of Law
Aligarh Muslim University

either in person or by pleader, if he is satisfied upon the report submitted by the police or
information of dispute which likely causes a breach of peace due to a dispute regarding land or
water within the local jurisdiction. The right claimed against the matter in dispute can be an
easement or otherwise.

The magistrate hears both parties in accordance of evidence produced by both parties and
decide the right of parties exists or not applying provisions of section 145 in the inquiry. Order
can be issued by the magistrate prohibiting any interference regarding the exercise of such
rights.

In the case of Gulam Farid Mian v. Ahmad Bhathihara25, it was held that for this section the
person may not be referring the right of easement in the strict sense but may have acquired
right of the user by any other mode. The right should be distinguished from the use of land as
owner and in a lawful way.

Section 148- Provisions for local inquiry

According to section 148, when under section 145, 146 or 147, the necessity to conduct an
inquiry is felt, a District Magistrate or Sub-Divisional Magistrate may depute any subordinate
magistrate to conduct an inquiry by issuing a written instruction which may be necessary for
his guidance.

After conducting an enquiry, the report is submitted by the deputed magistrate and it may be
read as evidence in the case. For any cost incurred by any party in proceeding under section
145, 146 or 147, the magistrate can issue direction of payment by the party. The order can be
passed to make payment either in part and proportion. The expenses with respect to witness
and pleaders’ fees may also be included in the expenses as the court feels reasonable.

As held in the case of Lakhan Singh v. Kishun Singh26, the principle of natural justice should
be followed and the party should be given an opportunity to be heard before any adverse order
is passed against it.

25
1978 CrLJ 1323
26
1970 CrLJ 1571

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