Useful Notes on Section 133 of the Code of Criminal Procedure – “Public Nuisance”

These provisions of the Cr. P.C. are to be invoked only in cases of an emergency and where there is imminent danger to the health of the community. Where the nuisance has been going on for a long time, the criminal courts tend not to interfere in the matter, leaving the parties to litigate before a civil court.

S. 133 provides that whenever a District Magistrate or a Sub-Divisional Magistrate, or any other Executive Magistrate specially empowered for this purpose by the State Government, on receiving a report of a Police Officer or other information, and on taking such evidence as he thinks fit, considers—

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(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 conflagration or explosion, should be prevented or stopped; or

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

(e) That any tank, well or excavation adjacent to any such way or public place should be fenced in such a 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 concerned, within a time to be fixed in the order,—

(i) To remove such obstruction or nuisance; or

(ii) To desist from carrying on 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.

If such a person objects to do so, he may be called upon to appear before the Magistrate (or some other Executive Magistrate subordinate to him) at the time and place to be fixed by the order, and show cause why the order should not be made absolute.

It will be seen that the order passed under section 133 is a conditional order. Before passing such a conditional order, the Magistrate is not bound to take evidence, and the order can be ex parte. However, he must hear the parties before making the order absolute. (Tejmal v. State of Maharashtra, 1982 Cr. L.J. 379)

Any order duly made by a Magistrate under S. 133 cannot be called in question in any Civil Court. Every such order must, if practicable, be served on the person against whom it is made, in the same manner as a summons. If the order cannot be so served, it must be notified by proclamation, published in such manner as the State Government may direct, and a copy thereof must be struck at such place or places as may be fittest for conveying the information to such persons.

The person against whom such an order is made must—

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

(b) Appear in accordance with such order and show cause against the same.

If the person does not perform the act, or appear, or show cause as above, he becomes liable to the penalty prescribed by S. 188 of the Indian Penal Code, 1860.

In all cases under S. 133, the Magistrate acts purely in public interest, and should not allow the provisions of this section to be used as a substitute for civil litigation to settle private disputes. (Farzand Ali v. Hakim Ali, – 1914 37 All. 26)

Specimen of Order:

The following is a specimen of an order for removal of a nuisance under S. 133:

(Name, description and address)

WHEREAS it has been made to appear to me that you have caused an obstruction (or nuisance) to persons using the public roadway (or other public place) which, etc., (describe the road or public place), by etc. (state what it is that causes the obstruction or nuisance), and that such obstruction (or nuisance) still exists;

Or

WHEREAS it has been made to appear to me that you are carrying on, as owner or manager, the trade or occupation of (state the particular trade or occupation and the place where it is carried on), and that the same is injurious to the public health (or comfort) by reason (state briefly in what manner the injurious effects are caused) and should be suppressed or removed to a different place;

Or

WHEREAS it has been made to appear to me that you are the owner (or are in possession of or have the control over) a certain tank (or well or excavation) adjacent to the public way (describe the thoroughfare), and the safety of the public is endangered by reason of the said tank (or well or excavation) being without a fence (or insecurely fenced)]

I do hereby direct and require you within (state the time allowed) (state what is required to be done to abate the nuisance) or to appear in the Esplanade Court at Mumbai on the 20th day of April, 20…, and to show cause why this order should not be enforced;

Or

I do hereby direct and require you within (state the time allowed) to cease carrying on the said trade or occupation at the said place, and not again to carry on the same or to remove the said trade from the place where it is now carried on, or to appear in the Esplanade Court at Mumbai on the 20th day of April, 20…, and to show cause why this order should not be enforced;

Or

I do hereby direct and require you within (state the time allowed) to put up a sufficient fence (state the kind of fence and the part to be fenced), or to appear in the Esplanade Court at Mumbai on the 20th day of April, 20…, and to show cause why this order should not be enforced.

Dated this 10th day of April, 20….

(Seal of the Court)

(Signature)

S. 137 then provides that if an order is made under S. 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 must question the person against whom the order is made, 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 must inquire into the matter.

If after such inquiry, the Magistrate finds that there is any reliable evidence of such denial, he must stay further proceedings in the matter, until the existence of such a right has been decided by a competent Civil Court. If, on the other hand, he finds that there is no such evidence, he must proceed in the matter as laid down in S. 138.

S. 138 provides that if the person against whom an order is made under S. 133 appears and shows cause against the order, the Magistrate must take evidence in the matter just as in a summons case. If the Magistrate is thereafter satisfied that the order (either as originally made, or subject to any modification which he may consider necessary) is reasonable and proper, the order is to be made absolute. On the other hand, if the Magistrate is not so satisfied, no further proceedings are to be taken in the matter.

For the purpose of such an inquiry, the Magistrate may—

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

(b) Summon and examine an expert.

Where the Magistrate directs a local investigation by any person, he may—

(a) Furnish such a person with such written instructions as may be necessary for his guidance; and

(b) Declare by whom the whole or any part of the necessary expenses of the local investigation is to be paid.

The report of such a person can be read as evidence in the case.

Similarly, when the Magistrate summons and examines an expert, as above, the Magistrate may direct by whom the cost of summoning and examining such a person is to be paid.

When an order is made absolute, the Magistrate must give notice of the same to the person against whom the order is made, and must also require him to perform the act directed by the order, within the time fixed in the notice, and inform him that in case of disobedience, he would be liable to be punished under S. 188 of the Indian Penal Code, 1860.

If such act is not performed within the fixed time, the Magistrate may cause it to be performed, and may recover the cost of performing it, either by the sale of any building, goods or other property covered by his order, or by the distress and sale of any other movable property of such person, whether within or outside the Magistrate’s local jurisdiction. Moreover, no suit can be filed in respect of anything done as above in good faith.

If a Magistrate making an order under S. 133 considers that immediate measures must 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 is made, as may be required to prevent such danger or injury, pending the determination of the matter.

If such a person does not forthwith obey such injunction, the Magistrate may himself use, or cause to be used; such means as he thinks fit to prevent such danger or injury. Here also, no suit can be filed in respect of anything done in good faith, as above. (S. 142)

S. 134 of the Code gives power to a District Magistrate or a Sub- Divisional Magistrate (or any other Executive Magistrate empowered by the State Government or by the District Magistrate) to order any person not to repeat or continue a public nuisance (as defined in the I.P.C. or by any special or local law).