Updated: May 22, 2020
The provisions of the Code of Criminal Procedure provides a much speedier and summary remedy against public nuisance, in comparison to the Air, Water and Environment Acts which provide cumbersome procedure for prosecution.
The provisions of Cr. P.C. remained unused for a long time for removing public nuisance, but, of late, the Supreme Court revitalized them. The public duty of the Magistrate to come to the rescue of citizens in such cases was emphasized.
According to Sec. 268 of Indian Penal Code, 1860, a person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, damage or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to person who may have occasion to Use any public right. A common nuisance is not excused on the ground that it causes some convenience or advantage.
A public nuisance thus is an unreasonable interference with a general right of the public. It is to be noted that a private dispute e.g. dispute between two neighbours only, is actionable in tort. Persons who pollute the environment by domestic, urban or industrial wastes, or cause loud and continuous noises which affect the health and comfort of those dwelling the neighborhood (e.g. an instrument, device or installation like a plant in a factory or a shop) are liable to prosecution for causing a public nuisance.
Section 133, Code of Criminal Procedure, 1973
Sec. 133 of Cr. P.C. provides an independent, speedy and summary remedy against public nuisance. The section empowers a magistrate to pass an order for the removal of a public nuisance within a fixed period of time.
The District Magistrate or Sub-Divisional Magistrate (S. D. M.) or other Executive Magistrate, specially empowered in this behalf, may make such order on receiving the report of a police-officer or other information (including complaint made by a citizen) and on taking such evidence as he thinks fit. If he considers among other things -
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
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;
such Magistrate may make a conditional order to remove such nuisance or obstruction or to desist from carrying on, or to remove or regulate, in such manner as may be directed, such trade or obstruction.
The order is conditional because it is only a preliminary order. When a person fails to appear and show cause (against the order), or when the court is satisfied on the evidence adduced that the initial | order was proper, the order is made final. Otherwise it is vacated.
Sec. 133, Cr. P.C. is categorical, although reads discretionary. Judicial discretion, when facts for its exercise are present, has a mandatory import. Once a magistrate has before him evidence of a public nuisance, he must order removal-of the nuisance within a fixed time.
The power of a magistrate under the Code is a public duty to the members of the public who are victims of the nuisance, and so he shall exercise it when the jurisdictional facts are present.
If the final order is defied or ignored, Sec. 188 of Indian Penal Code comes into plays Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management, disobeys such directions and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description-for a term which may extend to six months or fine which may extend to one thousand rupees, or with both.