By Soumik Chakraborty
Editor’s Note: The author attempts to analyze Section 133 of the Code of Criminal Procedure which deals with the procedure for removal of public nuisance and process thereof along with the analysis of few case laws.
Conditional order—Section 133 provides for a rough and ready procedure to be used in urgent cases for removal of public nuisances. According to this section whenever a District Magistrate or a Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this 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 anyway, 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 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 neighborhood 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 why the order should not be made absolute.
No order duly made by a Magistrate under this section shall be called in question in any civil court. This section is designed to afford a rough and ready procedure for removing public nuisances. It is interesting to note the observations of the Punjab & Haryana High Court on the nature and consequences of orders made under Section 133.
The Court observed—
“The proceedings are just to maintain peace and tranquility and the orders rendered under these sections are merely temporary orders. The orders of the courts are coterminous with the judgment or decree of the civil court. No sooner the civil court declares the right of the parties the temporary orders rendered by the courts under Sections 133, 145 and 147 of the Code come to an end.”
In fact, the section has been formulated to deal with emergent situations. In order to invoke Section 133(l)(a), the nuisance has got to be a public nuisance and then only it can be stated to affect the members of the public and hence can be removed from the public place. The phrase “public nuisance” has been defined in Section 268 of the Indian Penal Code and this definition can very well be imported for the purposes of Section 133. According to that definition, in order to constitute a public nuisance, the injury, danger or annoyance must be caused to the public, or to the people in the vicinity or to persons who may have occasion to exercise any public right.
The object and public purpose behind Section 133 are to prevent public nuisance that if the magistrate fails to take immediate recourse to Section 133, irreparable damage would be done to the public. However, under Section 133 no action seems possible if the nuisance has been in existence for a long period. In that case, the only remedy open to the aggrieved party is to move the civil court.
According to Section 12 of the Indian Penal Code, the word “public” includes any class of the public or community; but that class must be numerically sufficient to be designated “the public”. Therefore, if a particular individual or his family is only affected by the nuisance, such nuisance cannot be considered to be a public nuisance and hence its removal from any public place cannot be ordered under Section 133. It has been held that a place in order to be public must be open to the public, i. e., a place to which the public have access by right, permission, usage or otherwise.
Clause (b) of Section 133(1) is applicable only in such cases where the conduct of any trade or occupation, etc., is injurious to the health or physical comfort of the community. Where the trade of auctioning vegetables was carried on in a private house, and the noise caused by auctioning disturbed the comfort of the persons living in the locality, an order restraining such trade under Section 133 was held to be not justified by the Supreme Court. According to the Supreme Court, the conduct of trade in vegetables was not that injurious to the health or physical comfort of the community so as to attract preventive action under Section 133.
The Madhya Pradesh High Court has held that the working of a glucose saline manufacturing unit in a residential area was a nuisance causing disturbance to the people. The court reinstated the SDM’s order asking the firm to remove the unit from there.
The word “regulated” in clause (b) of Section 133(1) indicates that the court, instead of prohibiting the trade, etc., completely, can regulate the same in such a way as not to become a nuisance.
It has been ruled by the M. P. High Court that Section 133 cannot be invoked to remove the public nuisance of water pollution caused by industrial waste discharged by an industry inasmuch as there are other laws such as Water (Prevention and Control of Pollution) Act, 1974 to deal with it.
The object and purpose behind S. 133 of the Code are essential to prevent public nuisance and involves a sense of urgency in the sense that if the magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies when the nuisance is in existence. Sometimes, there is confusion between S. 133 and S. 144. While the latter is a more general provision, the former is more specific. While the order under the former is conditional the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal.
The Supreme Court dwelt with the question of application of pollution laws vis-a-vis criminal procedural law. The Court explained that the areas of operation of the Code and the pollution laws are different with wholly different aims and objects and though they alleviate nuisance that is not of identical nature. There is no impediment for their existence side by side.
Section 133(l) (c) does not specify the minimum number of persons that should be living or carrying on business in the neighborhood, etc. Therefore the requirement of the section is satisfied even if the danger is confined to the members of a single household.
Service or notification of order —The order shall be served on the person against whom it is made in the manner provided for service of a summons. If it cannot be so served, it shall be notified by proclamation duly published, and a copy thereof shall be stuck at such place as may be fittest for conveying the information to such person. [S. 134]
Person to obey the order or to show cause —The person against whom such an order is made shall—
(a) perform, within the time and in the manner specified in the order, the act directed thereby, or
(b) appear and show cause against the order. [S. 135]
The consequence of his failure to do so. —If such a person does not perform such act or appear to show cause, he shall be punishable under Section 188, IPC and the order shall be made absolute. [S. 136]
PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED
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 appearance 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, etc., and if he does so, the Magistrate shall inquire into the matter.
If in such inquiry the Magistrate finds 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 the competent court; and if he finds no such evidence, he shall proceed in accordance with Section 138. A person who has failed to deny the existence of such a public right or who even after such denial has failed to adduce reliable evidence in its support, shall not be allowed to make any such denial in the subsequent proceedings. [S. 137]
The inquiry as contemplated by Section 137 above is confined only to the denial of the public right and it has nothing to do with the inquiry made for determining whether or not the conditional order made under Section 133(1) is reasonable or proper. This latter inquiry can be made after the inquiry contemplated by Section 137 has resulted in a finding against the person to whom the conditional order was issued.
The object of Section 137 is that if the denial of the public pathway, etc. involves a bona fide claim on the part of the person denying the public right, the matter should be decided by a competent civil court and not by a Magistrate in a summary inquiry provided under Section 137.
PROCEDURE WHERE HE APPEARS TO SHOW CAUSE
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. If the Magistrate is satisfied that the order is reasonable and proper the order shall be made absolute; if he is not so satisfied, no further proceedings shall be taken in the case. [S. 138]
It is imperative for the Magistrate to take evidence in the matter and therefore he cannot just dispose of the matter without taking any evidence. His inspection of the site will not be of any use. It is not permissible to adduce evidence by way of affidavits and the Magistrate is bound to record evidence in the same manner as is recorded in a summons case.
LOCAL INVESTIGATION AND EXPERT EVIDENCE
The Magistrate may for the purposes of an inquiry under Section 137 or Section 138 (i. e., as mentioned in para 2 and 3 above)— (a) direct a local investigation to be made; or (b) summon and examine an expert. [S. 139]
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 expenses of the local investigation shall be paid. The report of such person may be read as evidence in the case. [S. 140(1)and (2)]
Where the Magistrate summons and examines an expert, he may direct by whom the costs of such summoning and examination shall be paid. [S. 140(3)]
PROCEDURE ON ORDER BEING MADE ABSOLUTE AND CONSEQUENCES OF DISOBEDIENCE
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 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 shall be liable to punishment under Section 188, IPC. [S. 141(1)]
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 any other property removed by his order, or by the distress and sale of any other movable property of such person. [S. 141(2)]
No suit shall lie in respect of anything done in good faith under the above provisions. [S. 141(3)]
It has been held that the order passed by a court cannot be reviewed by itself. Nor could the order be amended without giving notice to the parties.
INJUNCTION PENDING INQUIRY
If a Magistrate making an order under Section 133 considers that immediate measures are necessary 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. In default of such person forthwith obeying such injunction, the Magistrate may himself use such means as are necessary to obviate such danger or to prevent such injury. [S. 142(1) & (2)]
Though there is no specific provision to give notice to the person concerned before an injunction is issued, justice and fairness demand that order of injunction should ordinarily be issued only after affording an opportunity to the affected person of being heard.
No suit shall lie in respect of anything done in good faith by a Magistrate under the above provision. [S. 142(3)]
MAGISTRATE MAY PROHIBIT REPETITION OR CONTINUANCE OF PUBLIC NUISANCE
A District Magistrate or Sub-Divisional Magistrate, or any other Executive Magistrate duly empowered in this behalf, may order any person not to repeat or continue a public nuisance as defined in the Indian Penal Code or any special or local law [S. 143].
Such an order can be passed only if the matter has been adjudicated by a competent court. Disobedience of the order is punishable under Section 291 of the IPC.
Formatted on March 1st, 2019.
- Criminal Procedure Code, 1973
- Lectures on Criminal Procedure Code- R V Kelkar
- Law of Criminal Procedure- D. K Basu
- Sarkar on Law of Criminal Procedure
- Code of Criminal Procedure- Ratanlal & Dhirajlal