Aaryan Dhar
As per Section 268 of the Indian Penal Code 1860, public nuisance is defined as an individual is liable of a public nuisance whether he or she commits any action or makes any unlawful omission that causes any common harm, risk, or annoyance to the public at large or to the people in general who live or occupy land in the vicinity, or that may inevitably cause injury, interruption, risk, or annoyance to individuals who may have opportunity to use any public property. There are two main types of nuisance:
- public nuisance and
- private nuisance
This article talks about the different ingredients, procedure and punishment of a public nuisance.
Remedies
Civil remedy
Section 91 of the Civil Procedure Code of 1908 mentions civil remedies for public nuisance.
It says that any individual’s unlawful act that affects the public should be stopped:
- By obtaining an order prohibiting its continuation, or some other relief that the court finds appropriate in the circumstances.
- A suit against such an act may be brought by the attorney general or two or more people with the consent of the court.
Criminal Law
There are three remedies available under criminal law:
- It includes a lengthy list of sections with relation to public nuisance under Sections 133 and 144 (Chapter X) of the Criminal Procedure Code (hereinafter as CrP.C). The most relevant section, though, is Sec. 133, which includes conditional orders as a remedy for public nuisance. On receiving a report from a police officer and after considering the facts, a District Magistrate, Sub- Divisional Magistrate, or any other Executive Magistrate may issue a conditional order.
- The case will be prosecuted under the IPC (Chapter XIV)
- Anyone who causes a public nuisance that endangers the public’s health, welfare, or convenience is liable under Section 290 of the Indian Penal Code, which imposes a fine of two hundred rupees in such situations.
Punishment: Easy incarceration for up to six months or a fine, or both, is provided for under Section 291 of the IPC. This post is going to concentrate on CrP.C.
Ingredients of Public Nuisance
“Public nuisance is based on the principle embodied in the maxim of civil law sic uteretuout rem publicam non laedas, which means ‘enjoy your property in such a way as not to injure the rights of the public.”[1]
Public nuisance has two elements to it which on being complete can result in an individual or a group to be convicted of its charges under section 268 of the Penal Code.
The first element is for the act or omission to occur in a public place. Section 12 of the Indian Penal Code 1860 defines the word public, which includes any class of people or an entire community. This definition is extensive and can be modified as one of the scenarios at hand.
The second element for a public nuisance to take place is an act or an illegal omission to take place. The meanings of the term illegal omission refer to an, act, and illegal omission provided under sections 32, 33, and 43, IPC 1860, respectively, must be added to the word’s illegal omissions in this section. Under this clause, any omission would not be considered an infringement. There will be no public nuisance until the omission that induces the nuisance is an unlawful omission in the latter context.
Examples
- It is mentioned in the second para of the section that a general nuisance cannot be excused on the grounds that it provides any benefit or convenience. This indicates that the fact that the act was performed to avoid or minimize any damage to the accused’s interests or to protect his own lands and crops is not a defence to an accusation of committing a public nuisance as seen in the case of Bharosapatak vs. Emperor.[2]
- Slaughtering cattle can’t be considered a public nuisance until it is carried out in areas and in a way that may cause a public nuisance. The simple selling of meat or fish close or on a public road is inadequate for a conviction to take place, though the fact that such exposure is offensive to the religious susceptibilities may be a matter for executive action.
Removal of public nuisance
Conditional Order for Removal of Nuisance
The aim of this provision is to discourage public nuisance; if a judge fails to use section 133 of the CrP.C. immediately, the public will suffer irreparable harm. Its aim is to eradicate public disturbance, and it can be used in an emergency because the nuisance can often be harmful, necessitating urgent intervention.
An executive magistrate may exercise jurisdiction under this provision under the six situations mentioned in subsection 1 after receiving a police report or other facts about a public nuisance. This provision gives a judge the authority to deal with public nuisances and offers a summary solution for their exclusion, but there must be an immediate threat to property and a resulting inconvenience to the public.[3]
Section 144 of the Criminal Procedure Code, 1908
The clauses of Section 144 of the CrP.C 1908 concerned with Urgent Cases of Nuisance or Apprehended Hazard appear to be the most common section of the Criminal Procedure Code. It grants a judge the authority to take effective steps to avoid any of the events mentioned in Section 133 of the Code. A judge has the authority to order someone to refrain from doing anything. Whether a Magistrate believes that such guidance is likely to avoid, or appears to prevent, obstruction, nuisance, or harm to any individual legally working, or threat to human life, health, or welfare, or a disruption of the public tranquillity, or a riot, or an affray, a person may procure an injunction with respect to a certain property in his custody or under his management.
A magistrate’s prohibitor order issued under Section 144 of the Criminal Procedure Code will be enforced for 2 months, or 6 months if the state government agrees. The Executive Magistrates have the authority to issue prohibitor orders under Section 144 of the Criminal Procedure Code. This portion is an important method for avoiding a violent eruption.
Certain situations where this can be imposed –
- Annoyance to the public (Physical as well as mental annoyance)
- Injury to the life of human beings
- Disturbance caused to the public tranquillity
In acute nuisance cases, a magistrate’s powers are outlined in Section 144 of the code. These authorities provide instructions on how to deal with circumstances that endanger person’s existence, disrupt public order, or result in protests or affray. Due to any conflicts, these conditions can cause unrest or pose a threat to public peace and tranquillity in any country.
There was a controversy over a house in the case of Radhe Das v. Jairam Mahto,[4] and Magistrates imposed an injunction banning the claimant from entering the property. Petitioners requested that defendants’ rights be limited. Defendants have asked for the lawsuit to be dismissed and for the applicant to be barred from participating in it. Following that, the Magistrate granted it. The claimants argue that this injunction infringes on their land rights. The court ruled that the action should be done to avoid general harmony and tranquillity, and that a person’s human rights must be sacrificed for the common good.
Restrictions under section 144 of CrP.C 1908
The gathering of five or more persons in a public area with a popular item is prohibited under Section 144 of the CrP.C. According to the code, each member of the “illegal assembly” will be charged under Section 143 of the IPC. Section 141 of the IPC 1908 defines unlawful assembly. An unlawful assembly is described as a gathering of 5 or more people with a common illegal intention. And if the common purpose of the five persons that make up the assembly is any of the five things that are unlawful under Section 141 of the IPC, namely:
- using criminal force to overthrow a government
- resisting the enforcement of a statute or judicial process
- forcing others to perform illegal acts
- committing an offence
- forcible possession or disposition of land.
It prohibits the use of any firearm in the region where Section 144 of the Penal Code is in effect. A magistrate may declare prohibitions on bearing arms in procession, holding of, or participating in some mass drill or mass training with arms in a public place by issuing an order or issuing a public notice. If he has reason to think it is appropriate for the following reasons:
- public safety,
- public peace, or
- public order.
It makes it illegal to carry deadly weapons, such as night sticks, which are sharp-edged metallic devices that cover a kitchen knife. Any individual who violates the and continues to participate in the operation can be detained. This portion, on the other hand, would not prohibit police officers from carrying firearms. Only police and other security forces are permitted to carry guns in areas where Section 144 is in effect.
The state further has the authority to close the internet under Section 69A of the Information Technology Act. A judge may halt internet connectivity in an area under Section 144 of Code.
The complainant in Gaurav Suresh Bhai Vyas v. State of Gujarat[5] It was stated that the government should use Section 69A of the Information Technology Act to censor those websites to protect India’s dignity and reputation. Furthermore, the internet cannot be blocked by the state government.
The government has not entirely censored the internet, according to the court. People may connect to it through broadband or WIFI. The court decided that although Section 69A of the IT Act was intended to ban such websites, the government can give instructions to an individual in charge of expanding internet access under Section 144 of the CrP.C. The court ruled that in the event of a law-and-order crisis, the government should restrict internet connectivity to maintain security.
Consequences of Failing to do so
If such an individual fails to execute such act or appear and prove cause, he will be subject to the punishment set out in section 188 of the IPC then the order will become final.
If a person fails to perform such an act or appear to show cause, he will face the penalties outlined in Section 188 of the IPC, 1860. That whoever refuses to obey an order issued by a public servant lawfully authorized to issue such an order, whether such defiance causes or tends to cause interruption, annoyance, or injury, or poses a risk of obstruction, annoyance, or injury, should be punished with a simple imprisonment which may extend to a month or a fine, or both. This may also extend to a term of 6 months with a greater fine if the risk of obstruction is greater and life threatening.
Section 136 of CrP.C 1908 specifically specifies that if an individual fails to appear after receiving a preliminary order given under section 133, the preliminary order may be made final. The magistrate cannot use section 136 to make the preliminary order absolute if the individual appears or refuses the public right and then fails to appear to lead evidence, which can be seen in the case of Pavithranmadukkani Vs. Konjukochu.[6]
Section 141 – Procedure on Order Being Made Absolute and Consequences of Disobedience
Where an order is made absolute under section 136 or section 138, the Magistrate shall give notice to the individual against whom order was issued and shall further compel him to execute the act prescribed by the order within a period stated in the notice, and notify him that he will be liable to the punishment imposed by section 188 of the Indian Penal Code if he disobeys the order. The magistrate is required to notify the individual against whom an absolute order has been issued under section 136, as well as the actions that he is required to execute under the order within the time frame specified by the order. If an individual who has received an absolute order disobeys it, he will be prosecuted under section 188 of IPC1860.
If any act is not conducted within the time specified, the Magistrate may order that it be conducted and recover the costs of doing so, either by selling any building, goods, or other property removed by his order, or by distressing and selling any other movable property of any person within or outside such Magistrate’s local jurisdiction.
This provision allows a judge to seize a person’s property if they refuse to execute a certain act within a certain amount of time. The cost of performance may be recouped by the disposal of the dwelling, merchandise, or any other liquid assets. For expense recovery, the magistrate may bind property within or outside of his jurisdiction.
Nothing done in good conscience under this clause will give rise to a complaint. There shall be no suit brought over anything done in good conscience.
Conclusion
From the article, it is evident that the judiciary developed a new jurisprudence for environmental conservation and pollution control well before the development of the Environment Protection Act of 1986 and the Rio Declaration. If this thought is expanded, that is, the use of illegal machinery for environmental conservation, it is certain that environmental issues will be addressed quickly and economically, and a fundamental reform can be implemented not just to protect the environment but also to protect the lives of the general population. Since, as Justice V.R. Krishna Iyer put it, “what matters now is not how many rules we have, but how efficiently we enforce them.” As a result, invoking Section 133 of the Criminal Procedure Code and other applicable criminal regulations under various laws would pave the way for improved environmental governance and the elimination of environmental nuisance.
- sic utere tuo ut alienum non laedas↑
- Bharosapatak vs. Emperor (1912) CrLJ 183 (ALL) ↑
- Jain, A.K. criminal law- II 2018 ↑
- Radhe Das v. Jairam Mahto 123 Ind Cas 73 ↑
- Gaurav Suresh Bhai Vyas v. State of Gujarat C/WPPIL/191/2015 ↑
- Pavithranmadukkani Vs. Konjukochu, 1982 CRILJ 103, 104 (KER) ↑
References
Section 268 of the Indian Penal Code 1860/
Section 133 Criminal Procedure Code 1908/
Section 144 of the Criminal Procedure Code1908/
Section 144 of the Indian Penal Code 1860/
Section 188 of the Indian Penal Code 1860
Section 141 of the Criminal Procedure Code1908/