DM can order removal of public nuisance
In urgent cases of imminent danger to property and consequent public nuisance, the District Magistrate (DM) or a Sub-Divisional Magistrate or any Executive Magistrate can exercise a ready procedure and issue a conditional order to remove public nuisance or such activities, under Section 133 of the Criminal Procedure Code (CRPC).
DM to draw up a preliminary order
The DM must, under the Section 133, draw up a conditional order requiring the person, causing such nuisance or activities, to remove or desist from carrying on or to prevent or do what is needful to prevent such things within a specified time.
The order should specify that, in case he objects to do so as required in the order, the person should appear before himself or any other officer below him at a specified place and time to show cause why such an order should not be made absolute.
The order should be served on the person or it should be notified by proclamation or stuck up at specified placed to convey the information to the concerned person, under Section 134 CrPC.
The person to whom the order is addressed should either obey the order or to show cause against the order.
Order can be issued only in following items
The DM can issue conditional orders to remove public nuisance, on receipt of a police report or other information, in the following 6 circumstances alone.
- Unlawful obstruction or nuisance in any way, river or channel, or public place,
- The conduct of any trade or occupation which is injurious to the health or physical comfort of the community;
- the construction of any building or the disposal of any substance, as is likely to occasion conflagration or explosion,
- The removal, repair or support of any building, tent or structure, or the removal or support of any tree, which is in such a condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by:
- The fencing of any tank, wall or excavation adjacent to any public way or public place so as to prevent danger arising to the public; and
- the destruction, confining or disposal otherwise of any dangerous animal.
Remedies that can be provided under Section 133 CrPC
A Magistrate, who receives such information, can direct a conditional order with the following remedial measures-
- To immediately remove the interference or disturbance within a specified time.
- To either stop the construction of such a building or completely dispose of the building.
- To remove or repair the building, or the trees, tents or structures.
- To fence the pits, tanks or excavations.
- To eliminate or dismantle the animal causing any danger to the public.
- To stop or control the functioning of any trade/activity by either ordering the removal of goods or services, or managing the storage of such goods, in a prescribed manner.
The person must obey or show cause to DM
The person against whom the order is addressed should have three options to choose: he can perform what is required, he can appear before the DM and show cause why it cannot be obeyed, and he can approach the civil court to decide the public right involved in the matter.
If he fails to appear, the order will be made absolute
If the person receiving a conditional order fails to obey the order or show cause why it cannot be obeyed, the order will be made absolute under Section 136 CrPC.
Failure to comply with the direction of the DM, as to obey the order or to show cause, will be punishable under Section 188 Indian Penal Code (IPC), under Section 136 of CrPC.
If the person appears, denies & establishes his part
If the person appears and denies any public right under Section 137 CrPC, the order cannot be made absolute.
But if he establishes prima facie his denial of the public right, the DM should stop to proceed with the case until a civil court decides as to the issue of public right.
If the person appears and lead evidence
If the party, who received a preliminary order, appears and lead evidence in support of his denial the Magistrate can proceed to the action under Section 138 of CrPC and take evidence as in a summons case under section 138 CrPC. Then the Magistrate can make the order absolute without modification or with modification.
The Magistrate can direct local investigation or examination of expert as he thinks fit in the inquiry he conducts, under Section 139 CrPC.
Nuisance must be public
The DM can exercise the powers under Section 133 CrPC only when the nuisance is a public nuisance, as defined in section 268 of the Indian Penal Code (IPC).
To consider anything as a public nuisance, the consequent injury, danger or annoyance must be caused to the public in their exercise of any public right.
The object of Section 133 CrPC is to prevent public nuisance and to take immediate recourse when it occurs. If the nuisance is a long standing one the only remedy is to approach a civil court. If the nuisance is only to a family, it is not a public nuisance as per section 12 of the IPC.
To constitute a place as public place, the place must be open to the public and the public must have access to the place by right, permission, usage or otherwise.
DM’s action not a substitute for civil court litigation
The proceeding before DM under Section 133 CrPC should not be used as a substitute for civil court litigation to settle a private dispute. The DM can take action only when there is invasion of public rights. If the DM does not take action, then irreparable damage would take place to the public.
No order duly made by the Magistrate under Section 133 CrPC should be called in question in any civil suit. But the civil court can admit and decide a case on the matter in issue involved in the order.
Proceedings u/s 133 CrPC are civil in nature
The proceedings under Section 133 CrPC are summary and are in the nature of civil rather than criminal proceedings.
In passing a condition order under Section 133 CrPC the DM is not bound to take evidence. The DM’s order shall be served on the person against whom it is made. If not, it shall be notified by proclamation as the law prescribes.
Consequences of making an order absolute u/s 141 CrPC
When the order is made absolute under Section 136 or 138 CrPC, the Magistrate shall give notice to the person against whom order was made requiring him to perform the act directed by the order within a time to be fixed in the notice.
He should also be informed if there is disobedience on his part, he will be liable to be punished with penalty provided in Section 188 of IPC.
If the act in the notice is not performed, the Magistrate may cause the act to be performed and recover the costs of performing it by selling the property or assets. No suit shall lie against any bonafide activity in this regard.
DM can issue preliminary orders
A DM making an order under section 133, 137 or 138 can issue interim orders to prevent imminent danger or injury of a serious kind to the public under Section 142 CrPC.
Civil & criminal remedies against public nuisance in a nutshell
The civil remedies against public nuisance are two kinds: one is under Section 91 of the Civil Procedure Code (CPC) and the other is a suit by a private individual for a special damage suffered by him.
Criminal remedies against nuisance are three: one is prosecution under chapter 14 of IPC, the second one is summary proceedings under Sections 133 to 144 of CrPC and the third one is the remedies under special or local laws.
Further reading
