Section 138 CrPC: Procedure When a Person Appears to Show Cause - Section 157 BNSS
Section 138 of the Code of Criminal Procedure, 1973 governed the hearing of objections to a conditional order for removal of public nuisance. Its corresponding provision under the Bharatiya Nagarik Suraksha Sanhita, 2023 is Section 157.
Text of Section 138 CrPC, 1973
138. Procedure where he appears to show cause.
(1) If the person against whom an order under section 133 is made appears and shows cause against the order, the Magistrate shall take evidence in the matter as in a summons-case.
(2) If the Magistrate is satisfied that the order, either as originally made or subject to such modification as he considers necessary, is reasonable and proper, the order shall be made absolute without modification or, as the case may be, with such modification.
(3) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.
Section 157 BNSS, 2023: Corresponding Current Provision
Section 157 - Procedure where person against whom order is made under section 152 appears to show cause. When a person contests a conditional order under Section 152 BNSS, the Magistrate takes evidence as in a summons-case. The Magistrate may make the order absolute, with or without modifications, if satisfied that it is reasonable and proper; otherwise, no further proceedings are taken.
New time limit: The proviso to Section 157(3) requires proceedings to be completed as soon as possible within 90 days. The period may be extended to 120 days where reasons are recorded in writing. The statutory wording should be consulted when assessing the effect of delay in an individual case.
Meaning and Scope of the Provision
1. Conditional order for removal of nuisance
Section 133 CrPC, now corresponding to Section 152 BNSS, authorises a competent Magistrate to issue a conditional order in specified public nuisance situations, including unlawful obstruction affecting public ways or places and other dangers described in the statute.
2. Right to appear and show cause
The person addressed by the conditional order may appear and explain why the proposed direction should not be enforced. This permits a hearing before the conditional order is confirmed. The relevant appearance provision is Section 135 CrPC, corresponding to Section 154 BNSS.
3. Evidence as in a summons-case
The Magistrate must consider evidence rather than automatically confirming the initial order merely because it was issued. Documentary material, witness testimony, and other relevant evidence may be examined according to the applicable procedure.
4. Magistrate's decision
After considering the evidence, the Magistrate may confirm the conditional order as issued, confirm it with necessary modifications, or decline to proceed if not satisfied that the order is reasonable and proper.
5. Dispute over a public right
Where the existence of a public right in a way, river, channel, or place is denied, the special inquiry under Section 137 CrPC (Section 156 BNSS) may need to be undertaken before proceeding with the show-cause hearing.
CrPC and BNSS: Key Provisions
| Subject | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Conditional order for nuisance | Section 133 | Section 152 |
| Appearance and show cause | Section 135 | Section 154 |
| Denial of public right | Section 137 | Section 156 |
| Evidence and decision on show cause | Section 138 | Section 157 |
| Time limit in this section | No express 90/120-day proviso | 90 days, extendable to 120 days with written reasons |
Practical Considerations
A person responding to a conditional order should identify the alleged nuisance, review the order and its supporting material, and present relevant evidence at the hearing. Depending on the facts, records, site plans, permissions, photographs, witness testimony, and evidence of public use may be important. Where a genuine public-right dispute exists, Section 156 BNSS should also be considered.
Official Legislative References
Consult the Ministry of Home Affairs - New Criminal Laws and the Bureau of Police Research and Development - Official Acts and Resources for the Bharatiya Nagarik Suraksha Sanhita, 2023. The National Crime Records Bureau's New Criminal Laws Compendium provides section correspondence resources.
Note: This article provides general statutory information. Application of the CrPC or BNSS to a particular matter depends on commencement, savings provisions, the procedural stage, and the facts of the case.