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Table of Contents

INTRODUCTION.. 2

DETAILED ANALYSIS OF CHAPTER X, CRPC, 1973.

Section 133, Conditional order for removal of nuisance.

Section 134, Service or notification of order.

Section 135, Person to whom order is addressed to obey or show cause.

Section 136,Consequences of his failing to do so.

Section 137, Procedure where existence of public right is denied.

Section 138, Procedure where he appears to show cause.

Section 139, Power of Magistrate to direct local investigation and examination of an expert.

Section 140, Power of Magistrate to furnish written instructions, etc.

Section 141, Procedure on order being made absolute and consequences of disobedience.

Section 142, Injunction pending inquiry.

Section 143, Magistrate may prohibit repetition or continuance of public nuisance.

Section 144, Power to issue order in urgent cases of nuisance of apprehended danger.

Section 144A, Power to prohibit carrying arms in procession or mass drill or mass training with arms 

DIFFERENCE BETWEEN NUISANCE AS A TORT AND NUISANCE AS A CRIME..

ANALYSIS OF PROVISIONS RELATED TO PUBLIC NUISANCE IN OTHER COUNTRIES.

CONCLUSION..

BIBLIOGRAPHY.

LIST OF CASE LAWS.


INTRODUCTION

“The first duty of a government is to maintain law and order so that the life, property, and religious beliefs of its subjects are fully protected by the State.”

                                                                                                 -Mohammad Ali Jinnah

Chapter 10 of Criminal Procedure Code,1973 contains provisions relating to public order and tranquillity. The chapter has been classified into four categories. Under the Chapter sec 133 to 143 deals with public nuisance.

Nuisances are of two types:

(1) Public, and

(2) Private.

Public Nuisance has been defined under section 268 of Indian Penal Code, 1860. It is an offence against the public either by doing anything which tends to annoy any the whole community in general or by refusing or neglecting to do anything required for common good.[1] It is an act or omission which causes common injury danger or annoyance to the public or people in general who dwell or occupy a common vicinity.Private Nuisance on the other hand annoys or affects only a few individuals as compared to the public at large.

The remedies against nuisance are of two kinds – Civil and Criminal. The remedy in civil law are of two kinds. One is under section 91 of Code of Criminal Procedure. Under this section a suit can be filed and it is not necessary to prove that the aggrieved persons have suffered and special damage. The other remedy is a suit by private individual for any specific damage suffered by him. Under criminal law there are three remedies. The first is a prosecution under chapter XIV of Indian Penal Code,1860. The second remedy is a summary proceeding under section 133-144 of CrPc,1973. The remedy relates to relief under local or special laws.

The provisions of chapter X should be worked in such a way that it must not itself become a nuisance to the community. Every person is bound to use his property in such a way that it does not causes any harm to its neighbours, on the other hand no one has the right to interfere with the free and full enjoyment of property by any person except on the proof that the use of a property by any person causes harm or legal injury to him. Therefore, it is necessary that lawful activity or trade should not be interfered with unless it is proved to be injurious to physical comfort and health of the public.[2]

Proceedings under CrPC are not intended to settle private disputes between people.[3]They are intended to protect to protect the public as a whole against some inconvenience caused. It deals with physical comfort to the community and not with those acts which are in themselves nuisance but in the course of being committed becomes public nuisance. It must be shown that a large section of society is seriously affected. Public cannot be taken to mean residents of a house but it has a wider scope, to include public at large or people of an entire locality.[4]


DETAILED ANALYSIS OF CHAPTER X, CRPC, 1973

The code of criminal procedure devotes an entire corpus of 13 Section, from 133 to 144A to prevent and regulate public nuisance. The law relating to public nuisance is thus found in chapter X, “ Maintenance of public order and tranquility”, CrPC 1973.

This section of the paper is devoted to providing a detailed explanation of each of these 13 sections dealing with public nuisance.

Section 133, Conditional order for removal of nuisance[5]

Section 133, of the code of criminal procedure produced herewith, reads as follows, “Conditional order for removal of nuisance.

(1) Whenever a District Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate specially empowered in this of behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers-

(a)that any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or

(b) that the conduct of any trade or occupation, or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated; or

(c) that the construction of any building, or, the disposal of any substance, as is likely to occasion configuration or explosion, should be prevented or stopped; or

(d) that any building, tent or structure, or any tree is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by, and that in consequence the removal, repair or support of such building, tent or structure, or the removal or support of such tree, is necessary; or

(e)that any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or

(f) that any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandise, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order-

(i)to remove such obstruction or nuisance; or

(ii) to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed; or

(iii)to prevent or stop the construction of such building, or to alter the disposal of such substance; or

(iv)to remove, repair or support such building, tent or structure, or to remove or support such trees; or

(v)to fence such tank, well or excavation; or

(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or, if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the Order, and show cause, in the manner hereinafter provided, why the order should not be made absolute.

(2) No order duly made by a Magistrate under this section shall be called in question in any Civil Court. Explanation- A” public place” includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes.”

  • Apart from this provision, there are various special or local laws dealing with nuisance, the like of which are, Water (prevention and control of pollution) Act, 1974, Kerala Building (lease and rent control act, etc. The magistrates power to act under section 133 is not affected by them.[6]
  • This Section 133 corresponds to the old section 133 of the criminal procedure code, 1973 with following material changes:
  • Besides the district and the sub-divisional magistrates, the power under this section has been conferred on any other executive magistrate specially empowered by the state government on this behalf.
  • In view of the specific definition of “police report” under section 2(r) of the criminal procedure code, 1973 the expression has been replaced by “report of the police officer”
  • In the last para, the substitution of the words, “Show Cause…Absolute”, has been done to bring the language in harmony with the language of section 136 and 138 of the code of criminal procedure, 1973.
  • Scope

Chapter 10-B deals with public nuisance and the section empowers the magistrates specified therein to make a conditional order for the removal of such nuisance in emergent cases. Section 268-294-A of the Indian penal code, 1860 provides punishment for the commission of offences relating to public nuisance. It is substantive law of public nuisance. While this chapter contains procedure for speedy removal of the obstruction or nuisance itself which is injurious to the public. Nuisances are either public or private. The remedy for the latter is a civil suit. A public nuisance is something, which is offensive to the public, an inconvenience, discomfort or hurt annoying or endangering the safety of the whole community in general. A private nuisance may amount to public nuisance if it affects the public generally.

Section 133 of the code of criminal procedure is categorical, although it appears discretionary. Judicial discretion has a mandatory import. When on disclosure of existence of public nuisance from information or evidence the magistrate considers the such unlawful obstruction or nuisance should to be removed from any public place which may be lawfully used by the public, he is to order removal of such nuisance within the time fixed by the order.[7] It is only after passing such an order that further proceedings have to be taken by serving of the said order on the concerned person and the person against whom such order is made is to comply with such an order within the specified time. Consequences of his failure to comply with the order have to be dealt with in accordance of section 136, CrPC 1974.

Section 133, therefore provides a speedy and summary remedy in case of urgency where dance to public interest or public health, etc. is concerned. The idea is that if immediate steps are not taken, irreparable injury will be done. Extra-ordinary powers are meant to be exercised under extra-ordinary circumstances.[8] A magistrate has to act purely in the interest of the public. As drastic powers are conferred by section 133, CrPC, 1973 those powers are to be sparingly used, so as not to become themselves a nuisance to the public at large.[9]

The provisions of Section 133(1)(a), CrPC 1973, are not meant to settle private rights, which have no public character.[10] The mischief which is sought to be remedied under section 133 CrPC 1973, must be of a specified nature falling within clauses (a) to (f) of section 133(1) CrPC 1973, and cannot certainly cover cases where the apprehension itself is only that the standing tree, with no likelihood of it falling obstructing the growth and development of cultivation/trees in the neighbor’s property.[11]

Further, this section applies only to existing and not to potential nuisance i.e., to what may become is nuisance in the future; nor does it apply when the nuisance has ceased to exist.[12] Proceedings under this section are maintainable despite pendency of civil suit.[13]

  • Procedure

Magistrate can take action on information derived from any source.[14] The initiation will be bad in case the executive magistrate himself takes part in the local inquiry and as such he should not ultimately initiate the proceedings.[15]

Magistrate may issue a notice to show cause or a conditional order. Before passing conditional order on report of police officer or other information, magistrate may or may not take evidence but it must be taken under section 138, CrPC 1973 before making order absolute.[16] If the person appears and shows cause then the magistrate is required to take evidence as in a summons case. The magistrate cannot cancel conditional order without taking evidence. If a magistrate makes inspection under section 310 CrPC 1973, he cannot base his judgment on it but must take evidence.[17]

On appearance of the person, magistrate must before enquiry ask him whether he denies the existence of any public right. If he denies, it is for him to adduce evidence in support of it and a finding is to be recorded whether reliable evidence has been adduced or not. If there is no denial or reliable evidence, the magistrate proceeds to make enquiry and prosecution is to lead evidence.[18]

If the magistrate is satisfied that there is no need to proceed further, the proceedings can be dropped at any stage.[19] If sufficient cause is shown, proceedings may be revived.[20]

  • Cases not within the section

(i) Ram Avtar v. State of Uttar Pradesh, AIR 1962 SC 1794:

Auctioning of vegetables in a private house in the city and the parking of the vegetable carts on the public roads outside the building must necessarily cause some amount of discomfort to those who pass the public road and auctioning must also cause some amount of discomfort to people in the locality; but it does not justify action under section 133 of CrPC, 1973.

(ii) B.S. Corbet v. SonaullaBasunia AIR 1933 Cal 150:

Obstruction to private path, private road, khatal built on private property close to a public road resulting in inconvenience and affecting sanitation, parking buses on private land do not come under the purview of section 133 of CrPC.

(iii) In Re: Sadagopa Naidu, AIR 1949 Mad 75:

In the case of boundary dispute, encroachment does not amount to unlawful obstruction.

  • Cases within the section

(i) Rameshwar Agarwal v. Emperor, AIR 1939 Bom 92:

Noise injurious to the physical comfort of a community in included within the ambit of this section.

(ii) Sri Ram v. Emperor, AIR 1935 All 926:

Uncovered bones in a mill emitting noxious smell, discharge into river of effluents from a factory injurious to health come within the purview of this section.

(iii) Nurjan, 1900 PR 2:

Prostitutes playing their trade orderly and quietly cannot be interfered with, unless they become a nuisance by soliciting passers.

Section 134, Service or notification of order.[21]

The bare is produced herewith,

“134. Service or notification of order.

(1) The order shall, if practicable, be served on the person against whom it is made, in the manner herein provided for service of a summons.

(2) If such order cannot, be so served, it shall be notified by proclamation, published in such manner as the State Government may, by rules, direct, and a copy thereof shall be struck up at such place or places as may be fittest for conveying the Information to such person.”

The present section, but for the insertion of “the” before the word “manner” and “,” after the word “direct, “rule” and “may”, is a word for word reproduction of the old section 134.

“Service of Summons” (Sections 62-92 of CrPC 1973) may be on party or agent. If service under section 62, 64 CrPC 1973, cannot be effected by due diligence, it may then be affixed to house. Subsection of this section can be resorted to only when the order cannot be served in the manner provided for summons, but when there is no evidence that personal service or services on an adult member of the family could not be affected, service by affixation is no service at all.[22]“Person” includes any company, association or body of persons, e.g., all the male adult residents in a certain mohalla.[23]

Section 135, Person to whom order is addressed to obey or show cause.[24]

The bare provision is as follows,

“The person against whom such order is made shall-

(a) Perform, within the time and in the manner specified in the order, the act directed thereby; or

  • Appear in accordance with such order and show cause against the same.”

Section 135 corresponds to the old section 135 with the omission of the words in clause (b) after “same”  consequential on the abolition of jury trial.

  • Procedure

As to the procedure to be followed in the first place on the appearance of the person concerned before the magistrate, it is to be noted that under section 135, CrPC 1973, two contingencies are contemplated:

  • Perform within the time in the manner specified in the order, the act directed thereby, or
  • Appear in accordance with such order and show cause against the same.[25]

Clause (b) of the said section provides that the person against whom the order is made should be given reasonable opportunity to show cause and the conditional order made under section 133 CrPC 1973, cannot be made absolute unless a reasonable opportunity is given to aggrieved party to show cause and answer and answer the allegations made against him.[26] However the aggrieved can be heard in his defence once only and not more then that.[27] But this cannot be interpreted to mean that the burden of proof is upon the person against whom the conditional order is made to establish his innocence but the section requires that he will have to show-cause against the conditional order made under section 133 of CrPC 1973 in respect of the matters complained of by the petitioner.[28] If there is no claim of private right or that question has been decided against the person, the magistrate proceeds to enquire and take evidence under section 138 CrPC 1973. As the order was made ex-parte sufficient opportunity should be given to meet the charge.

Section 136Consequence of his failing to do so.[29]

Section 136 is as follows,

“136. Consequences of his failing to do so. If such person does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in section 188 of the Indian Penal Code, and the order shall be made absolute.”

This section corresponds to the old code deleting the provisions relating to the appointment of jury.

  • Scope

This section provides penalty for non-compliance with section 135 of CrPC 1973. The default under section 135 CrPC 1973 would result in prosecution under section 188 of the Indian Penal Code, 1860. The use of the words, “the oreder shall be made absolute” connotes that if the person proceeded against neither obeys nor appears and shows cause he can be punished forthwith without it being necessary to wait until the order has been made absolute.[30] Since the provisions of this section are very stringent because the intention to make facilities for conditional order is to prevent danger to the public making it final without needless delay is to ensure prompt safety to the public. Moreover when some order has been made absolute there is a presumption in favour of validity of the order and the party aggrieved again goes behind the order. It is not competent for a party to challenge its validity in any collateral proceeding. But an order which is ab-initio without jurisdiction is open for challenge.

Thus where an order under section 136CrPC 1973, was passed making the conditional order absolute without any notice, an opportunity of hearing to the party aggrieved, the order is bad in law and consequentially void.[31] A magistrate making a preliminary order can make it absolute when the party against whom it was passed fails to appear and denies public right but not otherwise.[32]

  • Ex-parte Order

Any order made absolute ex-parte is liable to be set-aside on sufficient ground being shown. It has also been decided in a number of cases that an order making conditional order absolute under section 136 without notice is bad in law and ab-initio void.[33] But at the same time this is to be kept in mind that the absolute order passed under the section cannot go beyond the parameter of the conditional order made under section 133(1) of the code, 1973.

Section 137, Procedure where existence of public right is denied.[34]

The bare section is,

(1) Where an order is made under section 133 for the purpose of preventing obstruction, nuisance or danger to the public in the use of any way, river, channel or place, the Magistrate shall, on the appearance before him of the person against whom the order was made, question him as to whether he denies the existence of any public right in respect of the way, river, channel or place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into the matter.

(2) If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in section 138.

(3) A person who has, on being questioned by the Magistrate under sub- section (1), failed to deny the existence of a public right of the nature therein referred to, or who, having made such denial, has failed to adduce reliable evidence in support thereof, shall not in the subsequent proceedings be permitted to make any such denial.”

Section 137, CrPC 1973,applies to only those cases where there is no concluded decision by a competent civil court about the existence of a public right and strong evidence in support of such denial before any magistrate. An enquiry under Section 138CrPC 1973, is mandatory where opposite party denies public nuisance.[35]

  • Section 133(1) read with section 137(2)

When a proceeding is instituted under section 133(1) of CrPc,1973 for an alleged obstruction of a public right, it is the duty of the magistrate to make two enquiries[36]

  • To determine whether or not there exists a right in respect of a public way, and
  • Whether or not there has been any obstruction caused on the said way regarding its use by public.

No such enquiries can be made without complying with the requirements of section 137 and 138 of CrPc, 1973. If a party against whom any order has been passed under the section denies the existence of such alleged public right, the magistrate shall enquire into the question by taking evidence on record from such objector. If on such enquiry it is found that the evidence in support of denial is reliable, the magistrate shall stay such proceedings until the existence of such right is decided by a court. However, if the court finds that such evidence is not reliable, he shall proceed under section 138 of CrPc, 1973 to determine whether there has been any obstruction caused by the objector after taking evidence from both parties. If, after taking such evidence finds that conditional order is reasonable, he shall with or without modifications, make it absolute. If he is not satisfied, he shall close the proceedings under section 133.[37]

In the case ofSahida Begum vs. Sarifuddin Ahmed[38], the magistrate without taking evidence of the obstructing party proceeded to take the evidence of the first party and arrived at the conclusion that there is no such obstruction causing public nuisance which ought to be removed and dismissed the case. The order was set aside on the ground that the Magistrate did not comply with the requirements of section 137(1) of CrPC.

Section 138, Procedure where he appears to show cause.[39]

The bare section is as follows,

(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.”

 

  • Procedure under section 137 and 138

 A summary enquiry under section 137 of CrPC,1973 is followed by a full-fledged enquiry under section 138 of CrPC,1973 in some cases. Where no enquiry has been held under section 137, CrPC 1973, by the magistrate and the petitioner was not given the opportunity to produce evidence about his denial of existence of a public passage, a final order or removal of nuisance passed by a magistrate would not be valid.[40]

Before initiating a proceeding under section 138 of CrPC,1973 the Magistrate has to question the person against whom an order under section 133, CrPC 1973, has been passed as to whether he denies the existence of any public right and he denies the existence of any such public right, the Executive Magistrate is required to enquire under that matter. Is such procedure is not followed proceedings under Section 138 of CrPC,1973 are liable to be quashed.[41]

There is a fundamental difference between enquiries under section 137(1) and 138 of CrPC, 1973. Where in reply to a notice under article 133 the existence of a public right is denied by a party and an enquiry under section 137(1) is urged, it is improper on the part of the court to mix the enquiries under section 137(1) and section 138 and pass a composite final order upon them.

Section 139, Power of Magistrate to direct local investigation and examination of an expert. [42]

The bare provision is,

“The Magistrate may, for the purposes of an inquiry under section 137 or section 138-

(a)Direct a local investigation to be made by such person as he thinks fit; or

(b)Summon and examine an expert.”

This section empowers the magistrate to direct local investigation and examine experts. The scope of enquiry under this section is only to find out whether there is any reliable prima facie evidence available in support of the other party about the denial of existence of a public right.

Section 140, Power of Magistrate to furnish written instructions, etc.[43]

The provision is as follows,

“(1)Where the Magistrate directs a local investigation by any person under section 139, the Magistrate may-

(a) furnish such person with such written instructions as may seem necessary for his guidance ;

(b) declare by whom the whole or any part of the necessary expenses of the local investigation shall be paid.

 (2) The report of such person may be read as evidence in the case.

 (3) Where the Magistrate summons and examines an expert under section 139, the Magistrate may direct by whom the costs of such summoning and examination shall be paid.”

  • Scope:

This section may be read as a corollary to Section 139 as under Section 140, the Magistrate is vested with powers to furnish written instructions etc., to the person whom he has entrusted to make the local investigation. Under sub-section (2) of Section 140 the report of such person directed to hold local investigation which shall form part of evidence in case and sub-section (3) relates to payment of costs to the person summoned as an expert to give his opinion.[44]

Section 141, Procedure on order being made absolute and consequences of disobedience. [45]

The section is as follows,

“(1) When an order has been made absolute under section 136 or section 138, the Magistrate shall give notice of the same to the person against whom the order was made, and shall further require him to perform the act directed by the order within a time to be fixed in the notice, and inform him that, in case of disobedience, he will be liable to the penalty provided by section 188 of the Indian Penal Code (45 of 1860).

 (2) If such act is not performed within the time fixed, the Magistrate may cause it to be performed, and may recover the costs of performing it, either by the sale of any building, goods or other property removed by his order, or by the distress and sale of any other movable property of such person within or without such Magistrate’s local jurisdiction and if such other property is without such jurisdiction, the order shall authorise its attachment and sale when endorsed by the Magistrate within whose local jurisdiction the property to be attached is found.

(3) No suit shall lie in respect of anything done in good faith under this section.”

  • Scope:

The section deals with service of notice for compliance of the order made absolute under Section 136 or under Section 138 of the Code.[46] But the section has no application in a case where proceeding has been dropped by the Magistrate.[47] Nor the section has any application where the conditional order passed under Section 133 has not been made absolute under Section 136 of the Code. The section is confined only to compliance of an order made absolute either under Section 136 or under Section 138 as already noted.[48] Though for non-compliance with the order, the Magistrate is competent to proceed under sub-section (2) for recovery of notice, it would be unjust and unfair for a Magistrate to recover costs from a party who was not actually served with the notice of the proceeding under Section 133.[49] Similarly it is not within the competence of the Magistrate to direct recovery of cost from a person who has died in the mean time as an order under Section 141(2) is issued against the individual.[50]

It is inherent in sub-section (3) that no suit for damages would lie for loss or injury sustained by the person concerned or any act done in good-faith under order of the Magistrate.[51] The proprietor of the land affected by the order can at least be passed until a suit for declaration that the land in question over which an order has been made by the Magistrate is not a public right.[52]

Though a conditional order under Section 133 cannot be questioned by a civil suit according to Section 133(2), there is no bar to file a civil suit to establish one’s rights which might have been affected by the absolute order passed under Section 138.[53] It has been held that the order passed by a court cannot be reviewed by itself.[54]The magistrate cannot compel either party to go to a Civil Court.[55]

Section 142, Injunction pending inquiry.[56]

The section is as follows,

“(1) If a Magistrate making an order under section 133 considers that immediate measures should be taken to prevent imminent danger or injury of a serious kind to the public, he may issue such an injunction to the person against whom the order was made, as is required to obviate or prevent such danger or injury pending the determination of the matter.

 (2)In default of such person forthwith obeying such injunction, the Magistrate may himself use, or cause to be used, such means as he thinks fit to obviate such danger or to prevent such injury.

 (3)No suit shall lie in respect of anything done in good faith by a Magistrate under this section.”

  • Scope:

A conditional order under Section 133 is a condition precedent to an order of injunction under this section. The magistrate can pass an interim order under Section 142(1) at any stage of the inquiry, whether the inquiry is one under Section 133 or Section 137 or Section 138.[57] But he must satisfy himself that the conditions set out in Section 142(1) are fulfilled. Accordingly, an order under Section 142(1) could only be passed if the Magistrate considers that there is an imminent danger or inquiry of a serious kind to the public.[58] Though the provision does not provide for notice before an injunction is issued, it is implied that the power to issue injunction should be exercised only after affording an opportunity to the person affected to be heard on the matter.[59]

In a case where a building was demolished as a result of an illegal order passed without obtaining even a police report, the Rajasthan High Court said that when there was urgency within the meaning of Section 142 the passing of orders without giving notice or conducting any inquiry as contemplated by Sections 138,139 and 140 must be regarded as improper.[60]

When the magistrate has initiated proceedings under Section 133 on the ground that stocking of timber is a public nuisance then he has no jurisdiction to issue an order of injunction to stop functioning of his saw mill which is not the subject matter of the proceedings before him.[61]

For disobedience of the injunction issued under sub-section (1), action under sub-section (2) of Section 142 cannot be initiated unless such injunction was of the description specified in sub-section (1) of Section 142.[62] In this connection, it is to be noted that when any application under Section 142 is filed, the Magistrate is duty bound to hear both sides and thereafter decide the matter.[63] In other words, an order of injunction cannot be passed without following the procedure laid down in the preceding section and accordingly action under sub-section (2) of Section 142 cannot be taken by the Magistrate unless the order of injunction was passed in accordance with the law.[64]

Section 143, Magistrate may prohibit repetition or continuance of public nuisance.[65]

The section is produced herewith,

“A District Magistrate or Sub-divisional Magistrate, or any other Executive Magistrate empowered by the State Government or the District Magistrate in this behalf, may order any person not to repeat or continue a public nuisance, as defined in the Indian Penal Code (45 of 1860), or any special or local law.”

  • Scope:

The object of the Section 143 is to prevent repetition or continuance of public nuisance. But for that a preliminary proceeding is imperative since Section 143 is not for original use.[66] Therefore the provision cannot be read in isolation but should be applied after compliance with the provision of the preceding section. Any order passed under the section without preliminary proceeding under Section 133 would be illegal.[67] It has been reiterated in Yagendra v. Seikh,[68]that before passing any order under this section, the Magistrate must draw up proceeding, take evidence and give the party proceeded against an opportunity of being heard as otherwise the order passed by him would be illegal, bad in law. Similarly, no order can be made against a person who was not a party in the earlier proceeding under Section 133 of the Code.[69]

An order passed under this section cannot be addressed to public at large. It must be addressed to a particular individual and served upon him in person.[70]The order under the above provision can be passed only if the matter has been adjudicated by a competent court.[71]

The disobedience of such an order has been made punishable under Section 291, Indian Penal Code, which provides that whoever repeats or continues a public nuisance having been enjoined by any public servant who is lawful authority to issue such injunction not to repeat or continue such nuisance shall be punished with simple imprisonment for a term which may extend to 6 months or fine or with both.[72]

Section 144, Power to issue order in urgent cases of nuisance of apprehended danger.[73]

The are provision of the section is produced herewith,

“144. Power to issue order in urgent cases of nuisance of apprehended danger.

(1) In cases where, in the opinion of a District Magistrate, a Sub- divisional Magistrate or any other Executive Magistrate specially empowered by the State Government in this behalf, there is sufficient ground for proceeding under this section and immediate prevention or speedy remedy is desirable, such Magistrate may, by a written order stating the material facts of the case and served in the manner provided by section 134, direct any person to abstain from a certain act or to take certain order with respect to certain property in his possession or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquility, or a riot, of an affray.

(2) An order under this section may, in cases of emergency or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte.

(3) An order under this section may be directed to a particular individual, or to persons residing in a particular place or area, or to the public generally when frequenting or visiting a particular place or area.

(4) No order under this section shall remain in force for more than two months from the making thereof: Provided that, if the State Government considers it necessary so to do for preventing danger to human life, health or safety or for preventing a riot or any affray, it may, by notification, direct that an order made by a Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which the order made by the Magistrate would have, but for such order, expired, as it may specify in the said notification.

(5) Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section, by himself or any Magistrate subordinate to him or by his predecessor- in- office.

(6) The State Government may, either on its own motion or on the application of any person aggrieved, rescind or alter any order made by it under the proviso to sub- section (4).

(7) Where an application under sub- section (5) or sub- section (6) is received, the Magistrate, or the State Government, as the case may be, shall afford to the applicant an early opportunity of appearing before him or it, either in person or by pleader and showing cause against the order; and if the Magistrate or the State Government, as the case may be, rejects the application wholly or in part, he or it shall record in writing the reasons for so doing.”

  • Material changes introduced in this section, from the old codes are:
  • The power to empower the executive magistrate has been retained only with the state government and has not been given to the district magistrate unlike the old section.
  • To remove the conflict of opinion as regards the meaning of “particular place” and whether the expression “frequenting or visiting” also incuded persons residing in a particular place, sub-section (3) has been amplified by addition of italicized words.
  • The power of the state government to extend the order of the magistrate indefinitely beyond 2 months under sub-section (4) has now been limited to a period not extending 6 months from the date of expiry of the initial order[74]; and further power has been given to the state government under new subsection (6) to rescind or alter on its own motion or upon application of the aggrieved party the order extending the duration.
  • Scope

The kind of order mentioned under this section is obviously intended to prevent danger to life held safety or peace or tranquility of the members of the public. These are only temporary orders, which can last for a period of 2 month only. Question of title cannot e decided at all. It is the duty of the authorities to aid and protect those who are performing completely legal acts in a reasonable and perfectly legal manner in accordance with what law permits them to do. But it is only where it is not practical to allow them to do something which is quiet legal, having regards to the stands of excited feelings of the persons living in an area or the locality frequenting that action may be taken under this section, which may interfere with what are otherwise completely legal and permissible conduct and speech. The magistrate is not concerned with individual rights while performing his duty under the section but he has to determine what may be reasonably necessary or expedient in a situation of which he is the best judge. No hard and fast rule cane be laid down for guidance in exercising this power to his satisfaction.[75] It has to be judged on facts and circumstances existing at a particular place at a particular time.

The true scope of this section is to find out whether there is any apprehension of breach of peace and not that by whom such apprehension is caused.[76] To invoke the provision of this section, there should be some apprehension of obstruction, annoyance, injury, etc. and the magistrate is to be satisfied about the state of apprehension and that should be reflected in the order of the magistrate having jurisdiction to pass necessary direction in his order.[77] But tis section should not be construed to confer nay power on the magistrate to decide or to adjudicate upon the civil dispute where the rights of the parties are decided by the competent civil court, the magistrate must have due regard to such decision of the civil court and subject to conditions of public peace and tranquility he must act in support of such rights and should not give any undue advantage to either party only because a large number of persons are holding out a threat.[78] In short, it is the duty of the magistrate to pass orders under this section to protect the interest of the society at large.[79]

As a matter of fact this section is intended to prevent danger to the life, health, safety or peace and tranquility concerning the members of the public. It is the emergency of the situation that actually vests the magistrate with the jurisdiction to act in the exercise of powers conferred under this section.

  • Procedure

The proceedings contemplated under sub-section (7) covers both the order of alteration or recession made by the magistrate under sub-section (5) or the state government under sub-section (6) of the code. Sub-section (7) provides that proceedings should be a judicial one and evidence should be recorded in open court before altering or rescinding the order passed.[80] As a matter of fact the wide powers conferred under this section are required for protection of the liberty of the citizen and the provision should be considered liberally as the order sought to be altered or rescinded was passed affecting the rights of the citizens.[81] It is therefore not permissible under sub-section (1) for a magistrate to dispose of an application by holding local inspection ex-parte and examining witnesses behind the back of the parties.

Since the provision of sub-section is mandatory the district magistrate without giving an opportunity to the petitioner to support this application cannot dismiss it summarily.[82] It is also incumbent on the magistrate rescinding or altering the order to record his reason if he rejects the application without any speaking order, the same is liable to be struck down.[83]

  • Orders

The nature of order under this section in intended to meet an emergency, is not intended to be permanent or semi-permanent in nature.[84]

Imposition of ban on sale of lottery tickets both private and state by commissioner held proper. Sale of lottery tickets is of pernicious nature, is covered by article 19(1)(g) and article 21 of the constitution.[85]

With regard to dispute as to right to passage, proceedings under section 147 and not under section 144, CrPC 1973 should be taken.

Blanket order prohibiting leader of political organization from entering into the district on the ground that his entry is going to create communal tension by his inflammatory speeches without furnishing incriminating material along with copies of FIR to him cannot be sustained.[86] Order imposing reasonable restrictions, in the interest of general public, on carrying trade was held to be valid.[87] Recourse cannot be taken under this section to evict trespassers.[88]

The expression “provocative slogans” has necessarily to be understood in the context in which it has been used in the order and therefore it cannot be regarded as vague. Further order prohibiting “provocative slogans” does not place unreasonable restriction on the rights of free speech of citizens.[89] Anticipatory action in cases of emergency is permissible.[90]

There is no general rule that order under this section cannot be passed without taking evidence.[91] An order passes under this section must not be vague. The proceedings drawn under section 144 can be converted to a proceeding under section 145 in appropriate cases within a period of 2 months from the date of limitation of the period.

Section 144A, Power to prohibit carrying arms in procession or mass drill or mass training with arms.[92]

The bare section is,

“(1)The District Magistrate may, whenever he considers it necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by public notice or by order, prohibit in any area within the local limits of his jurisdiction, the carrying of arms in any procession or the organising or holding of, or taking part in, any mass drill or mass training with arms in any public place.

(2)A public notice issued or an order made under this section may be directed to a particular person or to persons belonging to any community, party or organisation.

(3)No public notice issued or an order made under this section shall remain in force for more than three months from the date on which it is issued or made.

(4)The State Government may, if it considers necessary so to do for the preservation of public peace or public safety or for the maintenance of public order, by notification, direct that a public notice issued or order made by the District Magistrate under this section shall remain in force for such further period not exceeding six months from the date on which such public notice or order was issued or made by the District Magistrate would have, but for such direction, expired, as it may specify in the said notification.

(5)The State Government may, subject to such control and directions as it may deem fit to impose, by general or special order, delegate its powers under sub-section (4) to the District Magistrate.

Explanation: The word arms shall have the meaning assigned to it in section 153AA Indian Penal Code of the Indian Penal Code (45 of 1860).”

  • Scope:

 Section 144A is new and has been added by the Criminal Procedure Code (Amendment) Act, 2005. This provision has been brought to curb the militant activities of certain commercial organizations, a need has been felt to strengthen the hands of State authorities for effectively checking communal tension and foster a sense of complete security in the minds of members of the public. This section enables the District Magistrate to prohibit mass drill (or training) with arms in public places.[93]

DIFFERENCE BETWEEN NUISANCE AS A TORT AND NUISANCE AS A CRIME

To understand the difference between the two, one has to first diiferentiate public andd private nuisance.

  • Public nuisance

The term public nuisance covers a wide variety of crimes that threaten the health, safety, convenience, comfort, morals or welfare of a community. Offenders are punished by a criminal sentence, a fine, or both. A defendant may also be required to remove a nuisance or to pay the costs of removal of nuisance.[94] For example, an industrial manufacturer who causes pollution in a can be ordered to pay the cost of cleanup and restoration. Public safety nuisances include, practicing medicine without a license, shooting fireworks in the streets, storing explosives or harboring a vicious dog. Houses of prostitution, illegal liquor establishments, Gaming houses, and unlicensed prizefights have been held to be a nuisance by courts that interfere with public morals. Examples of nuisances threatening the public convenience are obstructing a highway or creating a condition to make travel or passage through a road unsafe.

A public nuisance interferes with the right of public as a class and not merely one person or a group of perons. No civil remedy exists for a private citizen harmed by a public nuisance, except when he can show that his or her harm was greater than the harm suffered by others. Also, if the individual suffers harm that is of a nature different from that of suffered by the general public, the individual may claim a tort action for damages. For example, if while construction a large boulder has been thrown onto a public highway, only a motorist who is injured from colliding with the boulder can claim an action for tort for personal injuries suffered by him and those people who use the highway cannot maintain a nuisance action for the inconvenience.

Some nuisances can be both public and private in nature under certain circumstances where the public nuisance substantially interferes with the use of an individual’s adjoining property. This is known as a case of mixed nuisance. For example, Pollution of a river, carrying on trades which causes intolerant noises, foul smells and spreads dust is a public nuisance.

  • Private Nuisance

 A private nuisance is a tort, which is civil in nature. A private nuisance is an interference with a person’s use and enjoyment of his land. The law recognizes that landowners and persons in rightful possession of land, have the right to unimpaired use of the property and to reasonable comfort and convenience in its possession.[95]

The tort of nuisance may be negatively defined as being distinguished from other tort actions. The term “nuisance” does not indicate any particular reason for liability because the various wrongs placed under it are based on breaches of differing duties. The term also is often used to indicate two differing actions: the action brought by a possessor of land to protect his own land (called “private nuisance”), and the action brought to protect the public interest from dangers to health, safety, morality, comfort, or convenience, known as “public (or common) nuisance” and can be both a criminal and a tort action under appropriate circumstances.

  • To establish Public nuisance as a tort five elements are required to be proved:[96]

(1) an interference with rights of the public or community or of a considerable number of persons

(2) a violation of some criminal law

(3) an evidence by plaintiff that special harm has been suffered by him – this may be be called the “special injury” requirement;

(4) to show that the interference with the public, and with plaintiff’s enjoyment of property and land, is unreasonable.

(5) soe recognized basis of tort liability- intent, negligence, strict liability for an ultra-hazardous activity, etc.

Nuisances that interfere with the physical condition of the land are examples of private nuisances which includes vibration or blasting that damages a house; or the pollution of soil; destruction of crops; raising of a water table; a stream, or an underground water supply. Examples of nuisances interfering with the comfort and convenience or health are foul odours, smoke, noxious gases, dust, loud noises, excessive light, or high temperatures. Moreover, a nuisance also disturbs a person’s mental tranquillity, even though an injury has not actually occurred such as a neighbour who keeps a vicious dog.

An attractive nuisance is a danger likely to lure children or animals onto a person’s land. For example, an individual who has a swimming pool in his property is under a legal obligation to take reasonable care and precautions, such as erecting a fence or keeping a notice board, to prevent foreseeable injury to children.

Trespass is not same as nuisance, the two are distinct. A trespass action protects against an invasion of one’s exclusive right to possession of land. If a landowner cuts and drops a tree across his neighbour’s boundary line he is said to be liable for trespass or if his dog barks all night not allowing the neighbour to sleep, he may be held liable for nuisance.

  • Defences

To avoid liability for nuisance, a defendant may argue that his particular activity was backed by a legislation i.e., he may have taken a licence or permission from any authority. Legislative authority will not totally excuse a defendant from liability if the conduct is found to be unreasonable.

A defendant cannot escape liability by arguing that he alone is not causing harm, others are also contributing to the harm. Damages will be imposed according to a defendant’s contribution of the blame, although it may be difficult to find out. Moreover, a defendant can even be held liable when his actions irrespective of the actions of others would not have constituted a nuisance.

Defendants sometimes argue that a plaintiff “came to a nuisance” by moving onto land next to an already operating source of interference. A new owner is entitled to the reasonable use and enjoyment of his or her land the same as anyone else, but the argument may be considered in determining the reasonableness of the defendant’s conduct. It may also have an impact in determining damages because the purchase price may have reflected the existence of the nuisance.

  • Remedies under tort.

Remedies for nuisance is usually monetary damages. An Injunction can also be proper under certain circumstances. An order for abetment can also be passed. An injunction orders can be given to defendant to stop, restrain, remove, or restrict a nuisance a threatened nuisance. In public nuisance cases, in addition to abatement or injunctive relief a fine or sentence can also be imposed.

Injunction is a harsh remedy, it must be used with proper care and caution and only when damage or the threat of it is irreparable and cannot be satisfactorily compensable only by monetary damages. The court must keep in mind the economic hardship that may be caused to the parties and the interest of the public must not be affected in allowing the continuation of the injunction.

A Self-Help remedy in form of abatement by the plaintiff, is available under exceptional circumstances only. This remedy must be exercised within a reasonable time after the knowledge of the nuisance and usually requires notice to be sent to the defendant followed by defendant’s failure to act. Reasonable force can be used to effect the abatement, and a plaintiff if causes any negligence to exercise such power can be held liable for unreasonable or unnecessary damages. For example, dead tree limbs extending over a neighbour’s house which are capable of causing danger may be removed by the neighbour in danger, after giving a reasonable notice to the landowner causing nuisance. In cases where an immediate danger to health, property, or life exists, no notice may be given.[97]

  • Remedies under Indian Penal Code, 1860

Section 269 IPC, 1860[98]: Negligent act likely to spread infection of disease dangerous to life

Whoever unlawfully or negligently does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.

Section 270 IPC, 1860[99]: Malignant act likely to spread infection of disease dangerous to life

Whoever malignantly does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Public nuisance as a tort is very different from public nisance as a part of criminal law. The former deals with nuisance mainly in the private zone of a person, while the latter majorly deals with public nuisance. Since public nuisance is seen as a more grave version of offence the punishment for the offender and the remedy for the victim varryconsiderqably in degree in tort and crimes. Criminal law is more acquianted with punishing the wrongdoer. It sees the remedy of the victim as being deemed to be  satisfied by punishing the wrongdoer. There is in most of the cases no separate positive remedy given to the victim. On the other hand under tort, the compensation granted to the victim is the punishment of the wrongdoer.

Therefore the contours of nuisance are coloured in varying degrees of severeness under tort and crimes making them two substantially different and parallel remedies.

ANALYSIS OF PROVISIONS RELATED TO PUBLIC NUISANCE IN OTHER COUNTRIES[100]

 

  • United Kingdom

In United Kingdom nuisance is defined as per common law only (which consists of unlawful act, legal duty and the fault element) although special mention ought to be given to the Environmental Protection Act 1990. Under section 80 of this Act, “a local authority officer who is satisfied that a nuisance exists can serve the perpetrator with an abatement notice, compelling them to stop the nuisance.” Failure to comply with this notice is a criminal offence.

Another statute which is of importance is the Noise and Statutory Nuisance Act 1993 (as amended by the Clean Neighbourhoods and Environment Act 2005). The Act makes certain noises in the street a statutory nuisance, such as those from loudspeakers or car alarms. The local authority can also charge the person responsible for any expenses the authority incurs when preventing the nuisance. However, the procedures are complicated, and many local authorities may be wary of attempting enforcement.

In addition to these acts the Noise Act 1996 imposes a duty on a local authority to follow up complaints of excessive noise coming from a house. A warning notice may be served if the noise exceeds permitted limits and occurs between 11.00pm and 7.30am. Failure to comply with the notice is an offence.

  • Australia

In the states of Australia, nuisance is defined at common law in the same way as in England and Wales, though some states have codified their criminal law. “A public nuisance is a crime, punishable at common law on indictment.” It is also provided for in the Criminal Codes of Queensland, Western Australia, Tasmania and the Northern Territory. In addition, some states (e.g. Queensland) have a statutory “public nuisance offence”, covering offensive language and behaviour in public. As stated above, in England and Wales many of these instances would be covered by specific statutory offences; but the current legislative practice in England and Wales is to make these offences entirely separate rather than creating statutory forms of public nuisance.

  • New Zealand

New Zealand defines “criminal nuisance” in Section 145 of the Crimes Act 1961[101].

  1. Criminal nuisance—(1) Every one commits criminal nuisance who does any unlawful act or omits to discharge any legal duty, such act or omission being one which he knew would endanger the lives, safety, or health of the public, or the life, safety, or health of any individual.

 (2) Everyone who commits criminal nuisance is liable to imprisonment for a term not exceeding 1 year.

This is narrower than the English offence since in that it requires danger to life, safety or health as a condition of criminal liability. Mere loss of amenity is not enough.

The mental element is stringent: the statute specifies that the defendant “knew” (not believed, or ought to have known) that the act “would” (not could, or might) endanger the lives of others. Arguably, however, the element of potentiality is caught by the word “endanger”, which includes a merely potential harm.

  • Canada

The Canadian criminal code defines common nuisance[102] as follows.

180.—(1) Everyone who commits a common nuisance and thereby

(a) endangers the lives, safety or health of the public, or

(b) causes physical injury to any person,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

 (2) For the purposes of this section, every one commits a common nuisance who does an unlawful act or fails to discharge a legal duty and thereby

(a) endangers the lives, safety, health, property or comfort of the public; or

(b) obstructs the public in the exercise or enjoyment of any right that is common to all the subjects of Her Majesty in Canada.

The basic definition of nuisance is similar to the English, in that it includes acts endangering the property or comfort of the public or obstructing public rights such as highways. However, it is not made criminal unless it endangers life, safety or health or causes an injury.

In the case of Thornton[103], concerning a person who had donated blood while infected by HIV, the two limbs of the definition were considered separately. “Unlawful act” was interpreted literally, as meaning conduct specifically proscribed by legislation. A “legal duty”, on the other hand, was held to extend to a common law duty of care, and was therefore sufficient to cover the facts of the case.

 The Canadian definition is silent on the fault element of the offence. In Thornton, the defendant appealed on the ground that the judge had mistakenly applied an objective instead of a subjective test in deciding on the fault element of the offence. The Ontario Court of Appeal did not decide which test was correct, but assumed a subjective test for the purposes of argument: it was held that the judge had not in fact applied an objective test and that a subjective test would be satisfied on the facts of the case. The offence is very rarely used, as most instances of nuisance are dealt with by civil proceedings at provincial level.

  • United States Of America

 In the United States the tort of public nuisance is defined in much the same way as in England and Wales. As a crime, it forms part of the description of several statutory offences under the codes of particular states; certain older examples include keeping a disorderly house and other offences against public morals, while newer examples are often concerned with inner city gang activity. The injunction procedure has been held lawful in this connection.

CONCLUSION

Whether it is the noise of the loudspeakers or the dug up roads, the occurrences of public nuisance are numerous. Unnecessary and incessant honking of horns to blocking the sun in a public park, the concept of nuisance is spanned in a vast sphere of our lives. While earlier, nuisance claims were generally instituted by individuals for damages, public nuisance claims through class litigation and public interest litigations are a relatively new addition in the Indian context.[104]

It is reasonably concluded from the details of section 133 to 144A of the Code of criminal Procedure elucidated here that, the provions prescribing the procedure to deal with public nuisance are indispensible. They are extremely important for maintenance of public peace and tranquility. Furthere there is also a measurable difference between nuisance under criminal law and torts.

After analysis of the sections 133-144A, CrPC, 1973 in light of judicial pronouncement it is found that the discretionary powers that are conferred upon the Magistrate are not unlimited. There are various fetters on its exercise so as to prevent any arbitrariness or unfairness in the order. The fact that the High Court can review the order of a Magistrate under Sec. 144 of the code of criminal procedure 1973, makes the exercise of this power more rational. Now-a-days the increasing cases of riots and other incidents ruining public peace and tranquility has made it mandatory and even more necessary for the Magistrates to have such powers so as to secure the common people the safety and peace which is essential for their living.

The provision of section 133 Criminal Procedure Code, 1973 is coming in handy for the courts to attach criminal liability to environmental damage and pollution.By innovativly extended the application of criminal law to environmental problems, the court ensures that the environmental problems can be effectivly and economically solved and revolution can be brought not only to protect the environmetn by asosafeguradth lives of people at large.

Quoting J. Edgar Hoover hence concludes the paper,

“Justice is merely incidental to law and order.

BIBLIOGRAPHY

  1. Ratanlal&Dhirajlal, The Code of Criminal Procedure 422 (20th ed. 2016).
  2. Joseph W Cleary, Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work, 31 U. Balt. L. Rev.273 (2001).
  3. Robert D Dodson, Rethinking Private Nuisance Law: Recognizing Aesthetic Nuisances in the New Millennium. 10 SC Envtl. LJ 1 (2002).
  4. Osborne M. Jr. Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318 (1978).
  5. The Free Dictionary, https://legal-dictionary.thefreedictionary.com/Tort+of+nuisance.
  6. The law commission consultation paper, “Simplification Of Criminal Law: Public Nuisance And Outraging Public Decency” 193, https://s3-eu-west-2.amazonaws.com/lawcomprodstoragejsxou24uy7q/uploads/2015/06/cp193_public_nuisance.pdf.

7.‘The Criminal Code of Newzealand’, http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329272.html.

  1. ‘The Canadian Criminal Law of Nuisance’, https://yourlaws.ca/criminal-code-canada/180-common-nuisance.
  2. 9. BatukLal, Commentory on the Code of Criminal Procedure 645 (Orient publishing company 2013).
  3. Ramjethmalani, The Code of Criminal Procedure, 1973 241 (Thomsom Reuters 2015).
  4. Shriniwas Gupta, Law relating to Criminal Procedure 296 (Thomson Reuters 2014).
  5. D.N.Sen, The Code of Criminal Procedure 408 (Premier Publishing Company 2004).
  6. R.V. Kelkar, Criminal Procedure 810 (6th ed. 2014).
  7. Sarkar, Code of Criminal Procedure, 763 (Wadhwa Publications, Nagpur, 2007).
  8. Law Teacher, ‘Public Nuisance in Indian Context’, https://www.lawteacher.net/free-law-essays/civil-law/civil-suits-on-public-nuisance.php.

 

LIST OF CASE LAWS

  1. Abdul Shakur Khan v. Emporer , AIR 1931 All 257.
  2. Acharya Jagdishwaranand v. Commissioner of Police, AIR 1984 SC 51.
  3. AkhilBhartiyaSaikari Lottery VyapariMahasangh v. Commissioner of police, 1999 CrLJ 368 (del).
  4. Arjun kumar v. State, 1960 Cr LJ 334.
  5. BabulalParate v. State of Maharashtra, AIR 1961 SC 884.
  6. Bal Bharti Nursery School, Allahabad v. D.M. Allahabad, 1990 CrLJ 422 (All).
  7. Basanti Devi v. Rex, AIR 1949 All 650.
  8. Aysumma, 1977 Mad LJ (Cri) 237.
  9. Chakrapan, (1929) 52 All 91.
  10. Chaldla v. State of W.B., 87 CWN 774.
  11. Chamunny v. State of Kerala, 1979 Cri LJ 151 (Ker).
  12. ChunniLall v. Ram KishenSahu, ILR (1888) 15 Cal 460.
  13. Datta v. State of West Bengal, 1976 CrLJ 1613.
  14. Debendranath v. State of West Bengal, 1994 CrLJ (NOC) 346.
  15. Dhayanarayan v. Surya kumar, 1989 CrLJ 1651.
  16. Eahabuddin v. Abdul Qadir, 1928 Cr LJ 30.
  17. Emperor v. RajjooLal, AIR 1934 All 325.
  18. Etawah v. K.C. Saxena, 1977 CrLJ 1747(All).
  19. Ganesh Charan v. Chandra Kumar, 1970 Cr LJ 1327.
  20. Gulam Abbas v. State of Uttar Pradesh, AIR 1981 SC 2198.
  21. Hrishikesh v. balaru, AIR 1967 Ori 72.
  22. In Re: Lalmanv.ChaudhuryBishambhar Nath, AIR 1932 All 159.
  23. RajgopalaChettiar v. Samdum Begum, AIR 1943 Mad 357.
  24. Isteyaque Ali v. State of Bihar, 2001 CrLJ 904 (Pat).
  25. Jagadish v. Dhanushdhari, 36 Cr LJ 187.
  26. Jathanad v. Sikarpur Municipality, AIR 1940 Sindh 24.
  27. JogendraLal Pal v. Sk. Anju, AIR 1935 Cal 108.
  28. Jugal Kishore v. Emperor, AIR 1928 All 300.
  29. K Mishra, A 1971 SC 1667.
  30. Kailash Chandra Jain v. S.M. Poddar, 1982 CrLJ 2322.
  31. Kailash v. S.M. Poddar, 1982 Cr LJ 2322.
  32. Kale Mian v. Raimohan, AIR 1958 Tri 47.
  33. Kalipada das v. State, AIR 1951 Cal 207.
  34. Khaliash v. S.D.M., 1982 Cr LJ 2322.
  35. Khushiram, AIR 1923 L 525.
  36. KolambilKhader v. State of Kerala, 2007 CrLJ 1301.
  37. Laxman v. Janardhan S. Kalangutar, 2007 CrLJ 136.
  38. Malkhan v.Malhar, 1984 CrLJ 387.
  39. ManickaVasaga v. K. Krishnaswami, AIR 1942 Mad 113.
  40. Gulam Abbas v. Md. Ibrahim, AIR 1978 SC 422.
  41. Sahjad v. State of Bihar, 2000 CrLJ 1829(Pat).
  42. Mooka v. Sinnu, AIR 1937 Mad 167.
  43. Mujaffarpur Electricity Company Ltd. V. State of Bihar, 1973 CrLJ 1716.
  44. Mukhtar Hussain v. Ganga Prasad, ILR (1951) 1 All 719.
  45. Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 622.
  46. Narayan Sahu v. Sub divisional Magistrate, Jaipur, 1986 CrLJ 102.
  47. Narayana v. S.D.M, 1986 CrLJ 102.
  48. NarsinghNarain v. Rameshwar Singh, AIR 1963 Pat 360.
  49. Pramodmathalik v. Dist. Magistrate Devangere, 2003 CrLJ 1783.
  50. Pratap v. State of U.P., 1982 ACC 338.
  51. Queen Empress v .Jokhu, ILR 8 All 99.
  52. Queen empress v. Biswanbharlal, ILR 13 All 577.
  53. Queen Empress v. Jokhu, ILR 8 All 99.
  54. v. Thornton, [1993] 2 SCR 445.
  55. Rakesh kumar v. State of uttar Pradesh, 1994 CrLJ 289.
  56. Ram v. Uttama, 1935 Cr LJ 144.
  57. Ramakrishnan v. K. Musalikutty, 1985 CrLJ 630 (Ker).
  58. Rambaboo, 1978 All Cr R 215.
  59. Rameswarnayan v. Emperor, AIR 1939 Bom 92.
  60. Ramlagan, 1976 CrLJ 204 (Pat).
  61. Ramu v. Murli das, AIR 1943 All 19.
  62. Taijudeli, 41 CWN 638.
  63. Sahida Begum v. Sarifuddin Ahmed, 2001 CrLJ 3401 Gau.
  64. SashibhusanTripathy v. State, 1985 Cri LJ 227 (Ori).
  65. Satyanarayan v. Emperor, 32 CrLJ 744.
  66. Shaukat Hussain v. Sheodayal, 1958 CrLJ 1319.
  67. Shriram v. Emporer, AIR 1935 All 926.
  68. Sohanlal v. Mohalal, 1976 CrLJ 1354.
  69. Shyam Sunder v. State of Rajasthan, 1998 Cri LJ 3959 (Raj).
  70. Sita Ram Mishra vs. State of U.P., 2012 CrLJ 3618(3619) (All).
  71. Suresh Prokash v. Krishna Swarup, 1976 CrLJ 462.
  72. K. Kelappan v. Revenue Inspector, 1986 (3) Crimes 468 (Ker).
  73. N. Sudhakaran v. E.M. George, 1973 Cri LJ 542 (Ker).
  74. TejmalPunamchandBurad v. State of Maharashtra, 1992 CrLJ 379.
  75. Yagendra v. Seikh, AIR 1935 Cal 108


[1]Shriniwas Gupta, Law relating to Criminal Procedure 296 (Thomson Reuters 2014).

[2]Shaukat Hussain v. Sheodayal, 1958 CrLJ 1319.

[3]Ratanlal and Dhirajlal, The Code of Criminal Procedure 390 (Lexis Nexis 2010).

[4]Pratap v. State of U.P., 1982 ACC 338.

[5] Code of Criminal Procedure, 1973, § 133, No. 2, Acts of Parliament, 1973 (India).

[6] In Re: Lalmanv.ChaudhuryBishambhar Nath, AIR 1932 All 159; RajgopalaChettiar v. Samdum Begum, AIR 1943 Mad 357.

[7] Municipal Council, Ratlam v. Vardichand, AIR 1980 SC 622.

[8]Basanti Devi v. Rex, AIR 1949 All 650; Aysumma, 1977 Mad LJ (Cri) 237.

[9] Narayan Sahu v. Sub divisional Magistrate, Jaipur, 1986 CrLJ 102.

[10]Laxman v. Janardhan S. Kalangutar, 2007 CrLJ 136.

[11]KolambilKhader v. State of Kerala, 2007 CrLJ 1301.

[12]Shriram v. Emporer, AIR 1935 All 926; Sohanlal v. Mohalal, 1976 CrLJ 1354.

[13] Rakesh kumar v. State of uttar Pradesh, 1994 CrLJ 289.

[14]TejmalPunamchandBurad v. State of Maharashtra, 1992 CrLJ 379.

[15]Datta v. State of West Bengal, 1976 CrLJ 1613.

[16] Abdul Shakur Khan v. Emporer , AIR 1931 All 257.

[17] Emperor v. RajjooLal, AIR 1934 All 325.

[18]NarsinghNarain v. Rameshwar Singh, AIR 1963 Pat 360.

[19]Ramu v. Murli das, AIR 1943 All 19.

[20]Rambaboo, 1978 All Cr R 215.

[21] Code of Criminal Procedure, 1973, § 134, No. 2, Acts of Parliament, 1973 (India).

[22]Kalipada das v. State, AIR 1951 Cal 207.

[23]Khushiram, AIR 1923 L 525.

[24] Code of Criminal Procedure, 1973, § 135, No. 2, Acts of Parliament, 1973 (India).

[25]Kailash Chandra Jain v. S.M. Poddar, 1982 CrLJ 2322.

[26] Suresh Prokash v. Krishna Swarup, 1976 CrLJ 462.

[27]Jathanad v. Sikarpur Municipality, AIR 1940 Sindh 24.

[28]Rameswarnayan v. Emperor, AIR 1939 Bom 92.

[29] Code of Criminal Procedure, 1973, § 136, No. 2, Acts of Parliament, 1973 (India).

[30] Queen empress v. Biswanbharlal, ILR 13 All 577.

[31] Narayana v. S.D.M, 1986 CrLJ 102.

[32]Ramsaranv. Ramlagan, 1976 CrLJ 204 (Pat).

[33]Malkhanv.Malhar, 1984 CrLJ 387.

[34] Code of Criminal Procedure, 1973, § 137, No. 2, Acts of Parliament, 1973 (India).

[35]Ramakrishnan v. K. Musalikutty, 1985 CrLJ 630 (Ker).

[36]Ramjethmalani, The Code of Criminal Procedure, 1973 241 (Thomsom Reuters 2015).

[37]BatukLal, Commentory on the Code of Criminal Procedure 645 (Orient publishing company 2013).

[38]Sahida Begum vs. Sarifuddin Ahmed, 2001 CrLJ 3401 Gau.

[39] Code of Criminal Procedure, 1973, § 138, No. 2, Acts of Parliament, 1973 (India).

[40]Isteyaque Ali v. State of Bihar, 2001 CrLJ 904 (Pat).

[41]Sita Ram Mishra v. State of U.P., 2012 CrLJ 3618(3619) (All).

[42] Code of Criminal Procedure, 1973, § 139, No. 2, Acts of Parliament, 1973 (India).

[43] Code of Criminal Procedure, 1973, § 140, No. 2, Acts of Parliament, 1973 (India).

[44]D.N.Sen, The Code of Criminal Procedure 408 (Premier Publishing Company 2004).

[45] Code of Criminal Procedure, 1973, § 141, No. 2, Acts of Parliament, 1973 (India).

[46] Arjun kumar v. State, 1960 Cr LJ 334.

[47]ManickaVasaga v. K. Krishnaswami, AIR 1942 Mad 113.

[48]Kailash v. S.M. Poddar, 1982 Cr LJ 2322.

[49]Eahabuddin v. Abdul Qadir, 1928 Cr LJ 30.

[50]Jugal Kishore v. Emperor, AIR 1928 All 300.

[51]Mukhtar Hussain v. Ganga Prasad, ILR (1951) 1 All 719.

[52]Chunilal v. Ram Kishan, ILR 15 Cal 460.

[53]ChunniLall v. Ram KishenSahu, ILR (1888) 15 Cal 460.

[54]SashibhusanTripathy v. State, 1985 Cri LJ 227 (Ori).

[55]Chakrapan, (1929) 52 All 91.

[56] Code of Criminal Procedure, 1973, § 142, No. 2, Acts of Parliament, 1973 (India).

[57]R.V. Kelkar, Criminal Procedure 810 (6th ed. 2014).

[58] T.N. Sudhakaran v. E.M. George, 1973 Cri LJ 542 (Ker).

[59]Chamunny v. State of Kerala, 1979 Cri LJ 151 (Ker).

[60]Shyam Sunder v. State of Rajasthan, 1998 Cri LJ 3959 (Raj).

[61] T.K. Kelappan v. Revenue Inspector, 1986 (3) Crimes 468 (Ker).

[62] Ganesh Charan v. Chandra Kumar, 1970 Cr LJ 1327.

[63]Khaliash v. S.D.M., 1982 Cr LJ 2322.

[64]Chaldla v. State of W.B., 87 CWN 774.

[65] Code of Criminal Procedure, 1973, § 143, No. 2, Acts of Parliament, 1973 (India).

[66]Jagadish v. Dhanushdhari, 36 Cr LJ 187.

[67]Sahadatv.Taijudeli, 41 CWN 638.

[68]Yagendra v. Seikh, AIR 1935 Cal 108.

[69] Ram v. Uttama, 1935 Cr LJ 144.

[70] Queen Empress v .Jokhu, ILR 8 All 99.

[71]JogendraLal Pal v. Sk. Anju, AIR 1935 Cal 108.

[72] Queen Empress v. Jokhu, ILR 8 All 99.

[73] Code of Criminal Procedure, 1973, § 144, No. 2, Acts of Parliament, 1973 (India).

[74] K.K Mishra, A 1971 SC 1667.

[75] Md. Gulam Abbas v. Md. Ibrahim, AIR 1978 SC 422.

[76]Debendranath v. State of West Bengal, 1994 CrLJ (NOC) 346.

[77]Dhayanarayan v. Surya kumar, 1989 CrLJ 1651.

[78]Gulam Abbas v. State of Uttar Pradesh, AIR 1981 SC 2198.

[79]Mujaffarpur Electricity Company Ltd. V. State of Bihar, 1973 CrLJ 1716.

[80]Satyanarayan v. Emperor, 32 CrLJ 744.

[81]Mooka v. Sinnu, AIR 1937 Mad 167.

[82] Kale Mian v. Raimohan, AIR 1958 Tri 47.

[83]Hrishikesh v. balaru, AIR 1967 Ori 72.

[84] Acharya Jagdishwaranand v. Commissioner of Police, AIR 1984 SC 51.

[85]AkhilBhartiyaSaikari Lottery VyapariMahasangh v. Commissioner of police, 1999 CrLJ 368 (del).

[86]Pramodmathalik v. Dist. Magistrate Devangere, 2003 CrLJ 1783.

[87] Bal Bharti Nursery School, Allahabad v. D.M. Allahabad, 1990 CrLJ 422 (All).

[88] Md. Sahjad v. State of Bihar, 2000 CrLJ 1829(Pat.).

[89]BabulalParate v. State of Maharashtra, AIR 1961 SC 884.

[90] Ibid.

[91]Etawah v. K.C. Saxena, 1977 CrLJ 1747(All).

[92] Code of Criminal Procedure, 1973, § 144A, No. 2, Acts of Parliament, 1973 (India).

[93]Ratanlal&Dhirajlal, The Code of Criminal Procedure 422 (20th ed. 2016).

[94] Joseph W Cleary, Municipalities Versus Gun Manufacturers: Why Public Nuisance Claims Just Do Not Work, 31 U. Balt. L. Rev. 273 (2001).

[95] Robert D Dodson, Rethinking Private Nuisance Law: Recognizing Aesthetic Nuisances in the New Millennium. 10 SC Envtl. LJ 1 (2002).

[96] Osborne M. Jr. Reynolds, Public Nuisance: A Crime in Tort Law, 31 Okla. L. Rev. 318 (1978).

[97] The Free Dictionary, https://legal-dictionary.thefreedictionary.com/Tort+of+nuisance (last visited 20th Mar 2018).

[98] Indian Penal Code, 1860, § 269, No. 45, Acts of Parliament, 1860 (India).

[99] Indian Penal Code, 1860, § 270, No. 45, Acts of Parliament, 1860 (India).

[100] The law commission consultation paper, “Simplification Of Criminal Law: Public Nuisance And Outraging Public Decency,” 193, https://s3-eu-west-2.amazonaws.com/lawcom-prod-storage 11jsxou24uy7q/uploads/2015/06/cp193_public_nuisance.pdf. (Last Visited, 19th Mar 2018).

[101]‘The Criminal Code of Newzealand, http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329272.html, (last visited 18th Mar 2018).

[102]Canadian Criminal Law of Nuisance, https://yourlaws.ca/criminal-code-canada/180-common-nuisance, (last visited 19th Mar 2018).

[103] R. v. Thornton, [1993] 2 SCR 445.

[104] Law Teacher, ‘Public Nuisance in Indian Context’, https://www.lawteacher.net/free-law-essays/civil-law/civil-suits-on-public-nuisance.php, (Last visited 19th Mar 2018).


About the authors: Hansaja, Hrithik, and Kunal are 2016-21 Batch students at Gujarat National Law University, Gandhinagar.


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