What provisions have been made in the Criminal Procedure Code for the removal of public nuisance?

Question: What provisions have been made in the Criminal Procedure Code for the removal of public nuisance? [RJS, 2016]

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Answer

Nuisance is an obstruction, risk, or injury to life, health, comfort, or convenience and if it causes damage to all persons within the sphere of its activity it is a public nuisance.

An interpretation of Section 133 (1) of CrPC will lead to the inference that ‘public nuisance’ includes any or all of the following acts:

First – any unlawful obstruction in any public place or from anyway, river or channel which is or may be lawfully used by the public,

Second – any trade or occupation, or any goods or merchandise, the conduct of which is injurious to the health or physical comfort of the community,

Third – construction of any building or disposal of any substance which is likely to cause fire or explosion,

Fourth – any building, tent, structure, or tree that is in such a condition which is likely to fall and cause injury to persons in the neighbourhood,

Fifth – any unfenced tank, well, or any excavation which lies adjacent to anyway or public place and

Sixth – any dangerous animal that may cause injury.

In Ram Kishore v. State 1973 Cri. L.J 1527 (HP), the court held that “a place in order to be public must be open to the public, i.e., place where the public has access by right, permission or usage”.

Further, in Vasant Manga v. Baburao Naidu (1996) SCC (Cri) 27, the court held that “community cannot be taken to mean residents of a particular house. It means something much wider than that.”

According to Section 133, upon receiving any reasonable information regarding the commission or omission of acts that cause a public nuisance, the appropriate Executive Magistrate can exercise his powers under Section 133.

The provision empowers the Magistrate to take evidence to support its belief that public nuisance is being committed in some part under its jurisdiction. After receiving the information and taking evidence, if the Magistrate is satisfied that one of the six circumstances aforementioned under Section 133 (1) exists, he may order the appropriate person to;

1. Remove such obstruction or nuisance,
2. To desist or take adequate measures to regulate the trade and occupations that are injurious to public health and safety,
3. To restrain the construction of any establishment which is constructed illegally and before the decree of the civil court in that regard,
4. To remove, repair or replace or otherwise fix the building or any other construction or tree which is in a falling condition,
5. To fence such tank, well or excavation which is unfenced and hence, threat,
6. To destroy, confine or otherwise dispose of such hazardous animals who pose a threat to society.

To exercise the power of removal of public nuisance, the following are the sine qua non:

1. The nuisance must be public and affect the members of the society as a whole and thus, can be removed from a public place,
2. There must be an imminent danger to property and a consequential nuisance to the public,
3. If the Magistrate does not take any action and direct the public to take recourse to the ordinary course of law, irreparable damage should be caused and
4. Obstruction or nuisance should be an invasion of the public right and on individual rights

Section 134 further provides that the order passed by the Magistrate under Section 133 should be served upon the person against whom it is made by police personally and a receipt of such service should be obtained by the officer. However, the section also makes provisions if the order cannot be served to the person personally.

Clause 2 of Section 134 mandates that such orders which cannot be served should be notified by proclamation and published in the official gazette or any other manner prescribed by the State Government. Also, a copy of the order must be stuck up at such place or places to ensure that the information of the order is conveyed to such person.

A person against whom such order is passed is required to adhere to the requirements of the order and remove the public nuisance in the time and manner stipulated in the order.

If a person fails to perform his duties under such order, Section 135 (b) allows him to show cause for non-compliance of the order and if the person fails to show cause as well, he shall be punished under Section 136 of the CrPC for an offence under Section 188 of the IPC.

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