PUBLIC NUISANCE UNDER CODE OF CRIMINAL PROCEDURE, 1973 Ambuja Srivastava BASICS OF LAW Wed, Nov 11, 2020, at ,02:07 AM Chapter 10 of the Criminal Procedure Code, 1973 contains provisions relating to public order and public tranquillity. The chapter is divided into four sections. Sections 133 to 143 pertain to public nuisance. Nuisances are of two types: Private, and Public. Public Nuisance is defined under section 268 of the Indian Penal Code, 1860. It is a violation of public law to do anything that offends the whole community or by refusing or neglecting to do whatever it takes to do good. It is an act or omission that creates the risk of general injury or resentment to the general public or people who live or live in the same area. But Nuisance on the other hand offends or affect only a few people compared to the rest of the community. Public nuisances have two types - Social and criminal. The remedies in political laws have two forms. One is under section 91 of the Criminal Code. Under this section, the applicant can be made and it is not necessary to prove that the humble people suffered special hardship and damage. Another remedy is a suit brought by private persons for any other harm that occurs to him. Under criminal law, there are three remedies. The first is the persecution under Chapter XIV of the Indian Penal Code, 1860. The second remedy is an ongoing summary under section 133 to section 144 of the CrPc, 1973. The third remedy relates to an exemption under local or special laws. The provision of Chapter X must be exercised in such a manner that it does not constitute a public hazard. Everyone is bound to use their property in such a way that it does not cause harm to their neighbours, on the other hand, no person has the right to interfere with the enjoyment and enjoyment of property completely by any person without proof that the use of any person's property is harmful or legally harmful. Therefore, it is imperative that legal practice or trade is not disrupted unless it is shown to be detrimental to physical liberty and public health. The Criminal Procedure Code, 1973 deals with provisions to deal with matters of public character. Paragraphs 133,134, 135, 136, 137, 138, 139, 140, 141, 142 and 143 deals with procedures to be followed in matters relating to public disturbances and cases of Urgent Nuisance or the risk received under section 144. Conditional Order - Section 133 provides for a rigorous and effective procedure for the disposal of public disturbances In terms of this section whenever a District Magistrate or Magistrate under any Section of the Chief Magistrate is empowered by the State Government, upon receipt of a police report or other information and takes such evidence ( if any) as you think you should, you think— that any unlawful disturbance or disturbance must be removed from any public place or, or river, or channel legally used by the public. Either that the operation of any trade or activity, or the storage of any goods or goods, is detrimental to the health or physical well-being of the public, and that as a result of such trade or activity must be permitted or regulated or that such goods or goods should be removed or kept in control; either that the erection of any building, or, the disposal of any material, which may have caused an eruption or explosion, must be withheld or stopped; either that any building, tent, or structure, or any tree, is likely to fall and is likely to cause injury to persons living or carrying on business in a neighbouring or passing area, and thereafter to be erected, repaired or supported by a building, tent or building, or support for this tree, is required; either that any tank, well or well in the vicinity of that road or public place must be detained in such a way as to prevent the danger from the public; either that any dangerous animal must be destroyed, detained or otherwise removed, Such Magistrate may make a conditional order requiring the person causing such disturbance or disturbance, or continue to trade or occupy or keep any goods or goods, or to own, manage or control such building, tent, building, object, tank, or excavation, or to have such an animal or tree, within a reasonable period of adjustment to the order— remove such interference or disturbance; either ceasing to continue, or removing or controlling in any way, trade or activity, or removing such goods or products, or treating its storage in such a manner as may be prescribed; either stop or stop the building, or alter the disposal of such building; either removing, repairing or supporting that building, tent or structure, or removing or supporting such trees; either the fencing of such tank, pit or pit; either dismantle, eliminate or discard the dangerous animal in the manner provided in the said order; or, if he wishes to do so, to appear before him or any other magistrate under his control at that time and place to be settled by the order, and to show why the order should not be made complete. In order to invoke section 133 (l) (a), the problem must be a public issue and only may be said to affect members of the public and consequently may be removed from the public domain. The term "public nuisance" is defined in section 268 of the Indian Penal Code and this definition may be properly inserted for purposes of Section 133. According to this definition, in order to create a public nuisance, injury, accident or resentment must be caused by the public, or to persons close to or who may have the opportunity to use or what a public right. Clause (b) of Section 133 (1) applies only in such cases where it is performed in any trade or occupation, etc., harming the health or physical liberty of the public. Where vegetable trading at auctions was conducted privately in the house, and noise caused by the auction disturbed the luxury of occupants, an order prohibiting such trading under section 133 was being held by the Supreme Court. According to the Supreme Court, the operation of the vegetable trade was not a detriment to the health or physical well-being of the public in order to attract protective measures under section 133. Section 133 (l) (c) does not specify the minimum number of persons who may be living or doing business in the area, etc. The need for that section is therefore satisfied even if the risk is restricted to members of the household. Service or Order Notification - The order will be forwarded to the person to whom the order has been assigned. If not, it will be notified of the official announcement, and a copy thereof shall be attached to the place where it may be suitable to transmit the information to that person. [S. 134] A person to obey a command or to show cause - A person to whom such order is made must— perform, within the time and manner specified in the order, an action referred thereto, or appear and show the cause of action against the order. [S. 135] Result of failure to do so- If such a person does not commit such an act or appears to have a cause, he or she will be fined under Section 188, the IPC and the order is made complete. [S. 136] PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED- When an order is made under section 133 for the purpose of preventing disturbance, disturbance or danger to the public by any means, river, channel or place, the Magistrate must, in the opinion of the person to whom the order is made, Ask him whether he denies any public right in respect of this route, river, etc. If he does, the Magistrate will investigate the matter. If in the inquiry the Magistrate finds conclusive evidence to support the objection, it will continue the trial until the matter is decided by a competent court on the issue of the right. and if he does not find such evidence, he must proceed in accordance with Article 138. A person who has failed to deny the existence of that public right or who has subsequently denied it has failed to establish credible evidence in its support, will not be allowed to make any such denial in subsequent proceedings. [S. 137] PROCEDURE WHERE HE APPEARS TO SHOW CAUSE- If a person made an order under section 133 then expresses a contravention of the order, the Magistrate will take evidence in this case as at the crime. Once the Magistrate is satisfied that the order is fair and reasonable the order will be made perfect; if he is not very satisfied, no action will be taken in this case. [S. 138] It is important for the Magistrate to take evidence in this regard so he cannot simply dismiss the case without taking any evidence. His exploration of the site will be of no avail. It is not permissible to testify in the form of affidavits and then the Magistrate binds the evidence in the same manner as recorded in the summons. EXPERT EVIDENCE AND LOCAL INVESTIGATION- The Magistrate may intend to investigate under Section 137 or Section 138 (a) order that a site investigation is conducted, or (b) call and inspect an expert [S. 139]. When the Magistrate orders the investigation of property by another person under section 139, the Magistrate- give the person written instructions as may be deemed necessary in his or her direction; declare who will pay the costs of the site inspection. The report of such a person can be read as evidence in this case. [S. 140 (1) and (2)] PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE- When an order is made in full under Section 136 or section 138, the Magistrate will hand over the document to the person to whom the order was made, and require him or her to perform the duties referred to in that order within a reasonable time, and inform him that, if he does not comply, he will be charged with a penalty under Section 188. , If such an action is not carried out within a stipulated period, the Magistrate may cause it to be executed and may recover the costs of performing it, either by the sale of any property, goods or other property removed by his order or by the sale and sale of any such movable property. [S.141 (2)]. No suit comes in respect of anything done in good faith under the above conditions. [S.141 (3)]. INJUNCTION PENDING INQUIRY- If the Magistrate issuing an order under section 133 deems that immediate action is necessary to prevent an accident or serious injury to the public, he may issue such law to the person to whom the order was made, as necessary to deviate or prevent such accident or injury pending the determination of the matter. Failing to do so after the person has complied with the order, the Magistrate himself may also use such measures to alleviate the accident or prevent such injury. [S.142 (1) & (2)]. No suit comes in respect of anything faithfully done by a Magistrate under that above principle. [S. 142 (3)] MAGISTRATE MAY PROHIBIT CONTINUANCE OR REPETITION OF PUBLIC NUISANCE- The District Magistrate or Magistrate under the Clause, or any other Chief Magistrate authorized thereafter, may order anyone not to repeat and continue a public nuisance as defined in the Indian Penal Code or any special or local law. [Section143]. Such an order can only be passed once the matter has been decided by a competent court. Non-compliance of the order is punishable under section 291 of the IPC.