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Showing contexts for: section public nuisance in K. Ramakrishnan And Anr. vs State Of Kerala And Ors. on 12 July, 1999Matching Fragments
1. This is an original petition highlighting the public health issue of the dangers of passive smoking and in which prayers are made to declare that smoking of tobacco in any form, whether in the form of cigarette, cigar, beedies or otherwise in public places is illegal, unconstitutional and violative of Article 21 of the Constitution of India; issue a writ in the nature of mandamus or such other writ commanding the respondents to take appropriate and immediate measures to prosecute and punish all persons guilty of smoking in public places treating the said act as satisfying the definition of 'public nuisance' as defined under Section 268 of the Indian Penal Code. We heard Mr. P. Deepak, counsel for the petitioners, the Advocate General for the State and counsel for other respondents.
23. The existing law on the subject is embodied in Sections 268 and 278, IPC, Rule 227(1)(d) and 227(5) 22(a) of the Kerala Motor Vehicles Rules 1989 besides the relevant provisions of Cr.P.C. Section 268, IPC define public nuisance. Section 268 :--
"Public nuisance -- A person is guilty of a public nuisance who does any act or is guilty of an illegal omission which causes any common injury, danger 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 persons who may have occasion to use any public right.
Offence under Section 188, IPC is cognizable as per first schedule of Cr.P.C. Therefore, after the promulgation of an order under Section 133(a). Cr.P.C., if any person is found smoking in a public place, the police can arrest him without a warrant. The only condition is that the order is duly promulgated by the Executive lagistrates, The Executive Magistrates have a duty to promulgate such an order.
24. In Ratlam Municipality v. Vardhichand, AIR 1980 SC 1622 Krishna Iyer, J. speaking for the Bench rules that the imperative tone of Section 133, Cr.P.C. read with the punitive temper of Section 188, IPC make the prohibitory act a mandatory duty. If a complaint is filed under Section 188, IPC, there is an embargo for the Magistrate to take cognizance under Section 195(1), Cr.P.C. as cognizance can be taken for the offence on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate. This embargo will disappear if there is a complaint in writing by the public servant concerned. Where there existed a public nuisance this. Court could require the executive under Section 133. Cr.P.C. to abate the nuisance by taking affirmative action on a time bound basis. Otherwise, it will pave the way for a profligate statutory body or pachydermic governmental agency to defy the law by wilful in action. Section 133, Cr.P.C. is categoric although reads discretionary. Judicial discretion when facts for its exercise are present, has a mandatory import. Therefore, when the Magistrate has, before him all the information and evidence, which disclose the existence of a public nuisance and, on the materials placed, he considers that such nuisance should be removed from any public place which may be lawfully used by the public, he shall act. Thus, his judicial power shall, passing through the procedural barrel, fire upon the obstruction or nuisance, triggered by the jurisdictional facts. The responsibility of the Magistrate under Section 133. Cr.P.C. is to order removal of such nuisance within a time to be fixed in the order. This is a public duty implicit in the public power to be exercised on behalf of the public and pursu-
26. In the result, we declare and hold as follows :
i) Public smoking of tobacco in any form whether in the form of cigarettes, cigars, beedies or otherwise is illegal, unconstitutional and violative of Article 21 of the Constitution of India. We direct the District Collectors of all the Districts of the State of Kerala who are suo motu impleaded as Additional respondents 39 to 52 to promulgate an order under Section 133 (a) Cr.P.C. prohibiting public smoking within one month from today and direct the 3rd respondent Director General of Police, Thiruvananthapuram, to issue instructions to his subordinates to take appropriate and immediate measures to prosecute all persons found smoking in public places treating the said act as satisfying the definition of "public nuisance" as defined under Section 268 IPC, in the manner indicated in this judgment by filing a complaint before the competent Magistrate and direct all other respondents to take appropriate action by way of display of 'Smoking Prohibited' boards etc. in their respective offices or campuses.