BNSS Section 165 Explained: Magistrate's Power to Attach Property & Appoint a Receiver

 


Introduction: Beyond Section 164 – When Does a Dispute Require Attachment?

Imagine a village where two neighbors are fighting over a piece of land. Both claim it belongs to them, and the argument has grown so intense that violence seems likely. The local authorities fear that if something is not done quickly, there will be a serious breach of the peace.
In such a situation, what can the law do immediately to stop violence and maintain order?

This is where Section 165 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) comes into play. The BNSS, which replaces the old Criminal Procedure Code (CrPC), introduces modern procedures for maintaining public peace and order.
While Section 164 BNSS deals with how a Magistrate should handle disputes concerning land or water that may lead to violence, Section 165 BNSS gives the Magistrate an emergency power. This power allows the Magistrate to attach the disputed property and, if necessary, appoint a receiver to take care of it until a proper court decides who owns it.

In this article, we will explain BNSS Section 165 in simple terms—its purpose, when it applies, how it works, and why it is an important safeguard against disorder.

Understanding Section 165(1): The 3 Conditions for Attaching Property

Section 165(1) gives the Magistrate the power to attach the property that is the subject of a dispute after starting proceedings under Section 164(1).
However, this power is not automatic. It can be used only in three specific circumstances. Let’s understand each one:

1. Case of Emergency

If the Magistrate believes that the situation is an emergency—meaning that violence or disturbance of peace is likely to occur immediately—he can order that the property be attached at once.
The main idea here is to prevent the situation from worsening. For example, if both parties are threatening to occupy the land by force, attachment ensures that neither can take control until the matter is legally settled.

2. No Party in Possession

Sometimes, the Magistrate finds that neither of the parties was actually in possession of the property when the dispute began. In such cases, it would be unfair to give temporary possession to one side. Therefore, the property can be attached to maintain neutrality.

3. Unable to Determine Possession

There are also cases where the Magistrate simply cannot decide who was in possession at the time of the dispute. This might happen when both parties produce conflicting evidence. In such a situation, the Magistrate can attach the property to keep the peace until a competent Civil Court determines the rightful owner.

Key Outcome

Once the Magistrate attaches the property, it remains under official control until a competent Civil Court decides the ownership rights of the parties.
This means the Magistrate does not decide ownership—his role is only to prevent conflict.

The Proviso: How Can an Attachment Order Be Withdrawn?

Section 165(1) also contains an important proviso—a condition that allows the Magistrate to withdraw the attachment order.

When Can the Magistrate Withdraw Attachment?

The Magistrate can withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of a breach of the peace.
In other words, if the dispute has cooled down, the parties have agreed to maintain peace, or the situation is otherwise stable, the attachment can be lifted.

Why Is This Important?

This proviso makes it clear that the purpose of Section 165 is preventive, not punitive.
The attachment is not meant to punish anyone or decide property rights—it is simply a temporary safety measure to prevent violence and maintain law and order.

Appointing a Receiver: Section 165(2) Explained

After the property has been attached, the Magistrate must decide how the property will be managed during the attachment period. This is covered under Section 165(2).

Two Options for the Magistrate

  1. Make arrangements himself for taking care of the property—for example, by placing it under police supervision or locking it up safely.

  2. Appoint a Receiver, who will manage the property until a Civil Court decides ownership.

Who Is a Receiver?

A receiver is a neutral person appointed to manage, protect, and maintain property during legal proceedings.
If a Civil Court has already appointed a receiver for the same property, the Magistrate cannot appoint another one. However, if no receiver exists, the Magistrate may do so.

Powers of the Receiver

The receiver appointed under Section 165(2) enjoys the same powers as a receiver appointed under the Code of Civil Procedure, 1908.
This means the receiver can:

  • Take possession of the property,

  • Collect rents or profits (if any),

  • Maintain the property, and

  • Prevent damage or misuse.

However, the receiver remains under the control of the Magistrate. The Magistrate can supervise, guide, and even remove the receiver if necessary.

Magistrate vs. Civil Court: Who Has Precedence?

A common question arises: what happens if both the Magistrate and a Civil Court are involved with the same property dispute?
Section 165 provides a clear answer—the Civil Court’s authority is higher.

When a Civil Court Appoints a Receiver Later

If a Civil Court later appoints its own receiver for the same property, the Magistrate must hand over control to the Civil Court’s receiver.

According to the section:

  1. Clause (a): The Magistrate must direct his receiver to deliver possession of the property to the Civil Court’s receiver. After this, the Magistrate’s receiver is discharged from duty.

  2. Clause (b): The Magistrate can pass any incidental or consequential orders that are fair and necessary—for example, settling accounts or handling expenses incurred during the attachment.

This arrangement ensures that judicial authority is respected and that the Civil Court remains the final decision-maker in property matters.

Conclusion: The Preventive & Temporary Nature of Section 165

To summarize, BNSS Section 165 is not about deciding who owns a property. It is about preventing violence and maintaining public peace when a property dispute threatens to create unrest.
The section gives the Magistrate temporary powers to attach the disputed property and, if necessary, appoint a receiver to manage it.
However, this power is limited and temporary—the Magistrate must withdraw the order once the risk of disturbance ends or when a Civil Court steps in.

Key Takeaways:

  • Section 165 is a preventive tool, not a means of deciding ownership.

  • It can be used only in cases of emergency, unclear possession, or absence of possession.

  • The Magistrate’s authority ends once the Civil Court takes charge.

  • The section ensures that public peace is maintained while legal rights are decided through proper judicial channels.

In essence, BNSS Section 165 serves as a bridge between criminal procedure and civil justice, ensuring that law and order are preserved without violating property rights.

Also read: BNSS Section 161

Frequently Asked Questions (FAQ) about BNSS Section 165

Q1: What is the main difference between Section 164 and Section 165 of the BNSS?
Ans: Section 164 deals with disputes likely to cause a breach of peace, focusing on who was in possession of the property. Section 165 gives the Magistrate the power to attach the property and appoint a receiver if there is an emergency, if possession is unclear, or if no one is in possession.

Q2: Can a Magistrate decide ownership of the property under Section 165?
Ans: No. The Magistrate cannot decide ownership. The attachment is only temporary and lasts until a Civil Court determines the rights of the parties.

Q3: What powers does a receiver appointed by the Magistrate have?
Ans: The receiver has all the powers of a receiver under the Code of Civil Procedure, 1908. This includes managing the property, collecting rent or income, and protecting it—under the Magistrate’s supervision.

Q4: What happens if a Civil Court appoints a receiver after the Magistrate?
Ans: The Civil Court’s receiver takes priority. The Magistrate must order his receiver to hand over the property and close the attachment proceedings.

Q5: Why is Section 165 important for maintaining peace?
Ans: Section 165 allows the Magistrate to take immediate preventive action when a dispute over property threatens to cause violence. By temporarily removing control from both parties, the law prevents escalation and ensures stability until the courts make a proper decision.

Final Words

BNSS Section 165 reflects the balance between public peace and private property rights. It empowers Magistrates to act swiftly in emergencies, ensures fairness by keeping ownership questions for Civil Courts, and upholds the rule of law.
For students of law, it is an excellent example of how preventive justice works within India’s legal system to maintain harmony and order in society.

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