CrPC Sections 137, 138 and 139: Denial of Public Right, Show Cause and Local Investigation
Sections 137, 138 and 139 of the Code of Criminal Procedure, 1973 formed part of the procedure dealing with conditional orders for removal of public nuisance. They governed what a Magistrate was required to do when a person denied the existence of a public right, appeared to show cause against an order, or when a local investigation or expert examination was considered necessary.
Context: Conditional Order under Section 133 CrPC
Section 133 CrPC empowered the competent Magistrate to make a conditional order for removal of specified obstructions, nuisances or dangers affecting the public. Sections 137 to 139 prescribed important procedural safeguards after such an order, particularly where the alleged public right itself was disputed or the person concerned contested the conditional order.
Section 137 CrPC: Procedure Where Existence of Public Right Is Denied
Meaning and purpose: Section 137 applied when a conditional order under Section 133 concerned obstruction, nuisance or danger to the public in the use of a way, river, channel or place, and the person against whom the order was made denied that the claimed public right existed.
Sub-section (1): On appearance of the person concerned, the Magistrate was required to ask whether the existence of the public right was denied. If it was denied, the Magistrate had to inquire into that issue before proceeding under Section 138.
Sub-section (2): If reliable evidence supported the denial, the Magistrate had to stay the proceedings until a competent Court decided the existence of the right. If there was no such reliable evidence, the Magistrate was to proceed under Section 138.
Sub-section (3): A person who failed to deny the public right when questioned, or who denied it but failed to produce reliable supporting evidence, could not raise the same denial later in those proceedings.
The provision therefore separated a genuine dispute about the existence of a public right from the subsequent inquiry into whether the conditional order should be made absolute.
Section 138 CrPC: Procedure Where the Person Appears to Show Cause
Meaning and purpose: Section 138 governed the evidentiary inquiry when the person against whom an order under Section 133 had been made appeared and showed cause against it.
Sub-section (1): The Magistrate was required to take evidence in the matter in the manner followed in a summons-case.
Sub-section (2): If satisfied that the conditional order was reasonable and proper, either in its original form or with necessary modification, the Magistrate could make the order absolute accordingly.
Sub-section (3): If the Magistrate was not so satisfied, no further proceedings were to be taken in the case.
This section required an evidence-based determination before a contested conditional order could become final.
Section 139 CrPC: Local Investigation and Examination of an Expert
Meaning and purpose: Section 139 gave the Magistrate fact-finding assistance for an inquiry under Section 137 or Section 138.
The Magistrate could:
(a) direct a local investigation to be made by a person considered fit for that purpose; or
(b) summon and examine an expert.
A local investigation could assist where the physical condition, location, access, obstruction or alleged nuisance needed on-site examination. Expert evidence could assist where technical or specialised knowledge was relevant to the inquiry.
How Sections 137, 138 and 139 Worked Together
| Provision | Function | Key procedural effect |
|---|---|---|
| Section 137 | Denial of existence of public right | Requires inquiry into the denial and, where reliable supporting evidence exists, stay of proceedings pending decision by a competent Court. |
| Section 138 | Person appears and shows cause | Requires evidence as in a summons-case and a decision whether the conditional order should be made absolute, modified or discontinued. |
| Section 139 | Local investigation or expert examination | Allows the Magistrate to obtain local or expert assistance for inquiries under Sections 137 and 138. |
Corresponding Provisions under BNSS, 2023
With effect from 1 July 2024, the BNSS replaced the CrPC as the general criminal procedure law, subject to its statutory savings and transitional operation. CrPC Section 137 corresponds to BNSS Section 156, CrPC Section 138 to BNSS Section 157, and CrPC Section 139 to BNSS Section 158. The basic structure of these three provisions is substantially retained, with the cross-references renumbered under the BNSS.
This page is intended as a legal information resource on the pre-BNSS CrPC framework. For a proceeding arising on or after the commencement of the BNSS, the current statute and applicable transition provisions should be checked.