Public nuisance

Introduction

Section 133 of the Criminal Procedure Code, 1973 is a condition order to remove nuisance. This provision is
usually used in urgent cases where public nuisance needs to be removed. Nuisance, in simple terms, refers to
any physical inconvenience or discomfort that interferes with the ordinary comfort of a human being. It is the
basic duty of our government to ensure that law and order is maintained at all times. This directly leads to the
protection of property, life, and even religious beliefs of the people by the State. Proceedings under the
Criminal Procedure Code are directed to protect the public at large. It does not serve to protect people against
private disputes. Therefore, for the Criminal Procedure Code, 1973 to function, a wide section of society must
be involved. Sections 133 to 144A under Chapter X of the CrPC are devoted entirely to regulating public
nuisance.

This article will analyse Section 133 CrPC in detail along with its essential ingredients and some of the landmark
judgements governing this Section.

Public nuisance vs. private nuisance

In order to understand the essential ingredients of this provision, it is first important to understand the
difference between public nuisance and private nuisance. Public nuisance is defined under Section 268 of the
Indian Penal Code, 1860. Accordingly, when any offence is committed against the public that causes an injury,
harm, or even annoyance to a larger public who occupy a common area, it is termed “public nuisance.”
Therefore, it is a crime against society and not just against an individual or a group of people. For instance,
polluting water streams, obstruction of highways, and storing explosives are examples of public nuisance.
Private nuisance, on the other hand, does not affect the public at large but only affects a few individuals.

Section 133 CrPC and its meaning

According to the provision, a District Magistrate, a Sub-Divisional Magistrate or even any other Executive
Magistrate as specified by the State Government is empowered to do the following provided sufficient evidence
has been presented:

 That any nuisance causing any obstruction should be removed from any public place, channel or river
that lawfully belongs to the public.
 That conducting a trade, occupation, or possession of certain merchandise has a direct negative impact
on the physical comfort of the public and, in consequence, the carrying out of such a trade, occupation
or possession of such merchandise must be prohibited.
 That the construction of any property or the disposal of substances in connection with such construction
is likely to result in an explosion and therefore must be stopped or prevented.
 That any building, tree, or structure is likely to fall and cause damage, and therefore the repair, removal,
or support of such a building, tree or structure becomes necessary.
 That any dangerous animal must be confined or disposed of as the case may be.
 That any well, excavation or tank that causes any obstruction to the public shall be accordingly removed
to prevent any danger to the public.

Therefore, as per Section 133 CrPC, a magistrate can take action if any information regarding any nuisance is
received through either a police report or any other credible source. It is also interesting to note that an order
made under this provision cannot be challenged before a Civil Court and is therefore considered to be a
rigorous remedy against public nuisance. Moreover, the provision also clarifies that a “public place” includes
property that belongs to the State, camping grounds, or even grounds that are left unused for sanitary or
recreational activities.

Remedies under Section 133 CrPC

A Magistrate on receiving such information can direct a conditional order with the following remedies-

 To immediately remove the interference or disturbance within a reasonable time period.

 To either stop the construction of such a building or completely dispose of such a 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.
Punishment under Section 133 CrPC

Section 268 to 294A of the Indian Penal Code, 1860 provides for the punishment for offences pertaining to
public nuisance. The offence of public nuisance is punishable except for the offences laid down in Section 290 of
the Indian Penal Code, 1860. Under this provision, the fine can be extended up to Rs. 200. The offence under
this Section is bailable, non-cognizable and non-compoundable.

Difference between Section 133 and Section 144 CrPC

Section 133 CrPC is often confused with Section 144 CrPC. Therefore, it becomes critical to understand the
difference between the two provisions. Section 133 CrPC is a specific provision that deals with offences
pertaining to public nuisance. However, Section 144 CrPC is used to keep a check on the presence or formation
of unlawful assemblies that can be a danger to public tranquillity and human life. It can also be used when
there is any anticipation of a riot or danger or annoyance to human life. This provision can be used even when
there is merely an anticipation of danger, provided that such anticipation is based on material facts.

Firstly, while Section 133 is a more specific provision, Section 144 is a generic and broader provision. Secondly,
the order made under Section 133 is conditional, and on the other hand, the order made under Section 144 is
absolute. In the case of State of M.P. v. Kedia Leather and Liquor Ltd. and Others (2003), the Court elaborated
on the differences between the two provisions comprehensively. The Court noted that proceedings under
Section 133 CrPC are of a summary nature and the offences under this provision are classified as public
nuisance. However, the offences under Section 144 CrPC are classified as ‘urgent cases of nuisance and
apprehended danger’. The Court further clarified that proceedings under Section 133 CrPC are civil in nature,
whereas the proceedings under Section 144 CrPC are mostly criminal in nature.

The differences are summarised below:

Section 133 Section 144

It is a specific provision only dealing with offences pertaining to public
Section 144 CrPC is a general provision.
nuisance.
The order made is conditional. The order made is absolute.
Proceedings are mostly criminal in
Proceedings are civil in nature.
nature.

Important case laws

The Supreme Court in the case of M/s. Nagarjuna Paper Mills Ltd. v. Sub-Divisional Magistrate and Revenue
Divisional Officer(1987) held that a Magistrate could not make an order to remove pollutants from water
discharged due to industrial waste on account of preventing water pollution. This is because other laws, such as
the Water (Prevention and Control of Pollution) Act, 1974, are exhaustive and were enacted to specifically deal
with such issues. Further, while the remedies provided under Section 133 CrPC are remedial, the remedies
given under the Act are preventive. Therefore, the powers of a Sub Divisional Magistrate to make an order
under Section 133 CrPC are taken away.

In the case of the State of M.P. v. Kedia Leather and Liquor Ltd. and Others (2003), the Allahabad High Court
clarified the ambiguity regarding the scope of the term “public nuisance”. The Court held that the term “public
nuisance” cannot be given a precise definition and the only qualifying factor to constitute an offence under
Section 133 CrPC is to see whether there is any “imminent danger” to the general public at large. The Court also
clarified that the true role of Section 133 CrPC is in urgent matters wherein any failure to prevent nuisance by
the magistrate can result in irreparable damage to the public. It was further held that this section can only be
applied when the nuisance exists and therefore cannot be used in any potential case of nuisance.

In another important judgement, the High Court of Madras in the case of the Manager v. the Sub Divisional
Magistrate (2008) gave out some important guidelines pertaining to Section 133 CrPC. These are-

 Any order made under Section 133 CrPC must be based only upon material factors.
 The restrictions imposed under such an order must be reasonable and fair.
 Proceedings under this Section cannot be used for the settlement of private disputes.
 An order under Section 133 CrPC can be passed only if there is any imminent danger to the physical
comfort of the public.
 This imminent danger must lead to public nuisance.
 An order made under Section 133 CrPC cannot be substituted with civil proceedings.
 The provision only comes into play when there is a sense of urgency and not when the nuisance has
been in place for a long period of time.
In a recent Karnataka High Court judgement, the Court in the case of Achut D. Nayak and Ors v. the Sub
Divisional Magistrate and Anr. (2022) held that a Magistrate exercising power under Section 133 CrPC must do
so only after providing the party with a reasonable and sufficient opportunity of being heard and recording
evidence in order to arrive at a conclusion that the actions of the person/party caused any kind of public
nuisance. It was also held by the court that by not recording evidence and taking the necessary material on
record, there could be a serious miscarriage of justice and abuse of the law.

Conclusion

Section 133 CrPC attempts to protect the community from public nuisance. It must be appreciated that the
provision is rigorous as it clearly states that an order made by the Magistrate cannot be challenged before the
civil court. Further, the Courts from time to time have removed ambiguities regarding the scope, nature as well
as applicability of this provision. At the same time, the Courts have also ensured that the power given to the
Magistrate under this provision is not used excessively or in an unreasonable or unfair manner by clearly
instructing the authorities to consider material factors before passing any orders. Not only this, but the Courts
have also ensured that trivial matters such as raising the volume in private property do not bear the
consequences of public nuisance. It is important that the provision is used fairly and for the right reasons. It is
noteworthy that the courts have always ensured that the provision serves its purpose.