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1. This case has been referred to a Division Bench by a learned Single Judge of this Court as there was divergency of views with regard to interpretation of Section 133 of the Code of Criminal Procedure.

2. In the case of Khetrabasi Patnaik v. State 32 (1966) CLT 991, learned Single Judge came to the conclusion that where an old cocoanut tree leans towards the court-yard of the complainant and there is apprehension of danger to the human life, a Magistrate would have jurisdiction to entertain an application under Section 133 of the Code of Criminal Procedure as the nuisance would amount to a public nuisance. In Gayasundari Devi v. Jagannath Nayak and Anr. 55(1983) CLT 110, a learned Single Judge of this Court came to hold that Section 133 of the Code of Criminal Procedure would apply only when a public nuisance is caused and would not apply where the apprehension is confined to damage to a particular individual. In Lalmohan Patnaik v. Harihar Tripathy 36 (1970) CLT 148, another learned Single Judge was of the opinion that Section 133 Cr.P.C. is intended to protect the public as a whole against any inconvenience and the same is not intended to settle any private dispute between different members of the public. In Gayasundari's case as well as Lalmohan Patnaik's case, referred to supra. Khetrabasi Patnaik's case has not been noticed. In the case in hand our learned brother Justice V. Gopalaswamy, as he then was, accepted the view taken by this Court in Khetrabasi Patnaik's case but on account of divergency of views between the learned Single Judges of this Court as stated earlier thought it appropriate to refer the matter to a larger Bench. The question that arises for consideration is whether the provisions of Section 133 Cr.P.C. can be invoked for removal of "public nuisance" or it can be for removal of "nuisance" enumerated, in different clauses of Sub-section (1) of Section 133 Cr.P.C.

Explanation : A "public place" includes also property belonging to the State camping grounds and grounds left unoccupied for sanitary or recreative purposes."

It is apparent that though the heading of Chapter X-B mentions "public nuisance", but the heading of the Section 133 mentions only conditional order for removal of nuisance. The expression "nuisance" has not been defined in the Code of Criminal Procedure but Section 2(y) of the Code of Criminal Procedure states that the words and expressions used in the Code and not defined but defined in the Indian Penal Code will have the meanings respectively assigned to them in that Code. Chapter XIV of the Indian Penal Code deals with offences affecting the public health, safety, convenience, decency and morals and Section 268 in the said Chapter speaks of "public nuisance". Under Section 268 IPC a person is guilty of a public nuisance who does any act or is gulity of an illegal omission which cause 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. Thus under the Indian Penal Code an act or illegal omission of a person causing danger or annoyance to the people in general who dwell or occupy property in th3 vicinity would be a public nuisance. The aforesaid definition should be borne in mind while interpreting Section 163(1)(d) of the Code of Criminal Procedure.

Thus while the Court is entitled to look at the headings in an Act of Parliament to resolve any doubt they may have as to ambiguous words, the law is quite clear that the Court cannot use such headings to give a different effect to clear words of the section where there cannot be any doubt as to their ordinary meaning. Bearing in mind the aforesaid well settled principles of construction of Statute and under what circumstances the Court can take the aid of the heading to construe a statute we would now examine the provisions of Section 133(1)(d) of the Code of Criminal Procedure. A bare reading of the section is sufficient to hold that there is no doubt or ambiguity with regard to the language of the words used in the sense of the said clause. The clear grammatical meaning conveys a positive sense and there is no doubt for a Court so as to take in the extrinsic aid of looking at the heading of the Chapter for finding the true intention of the legislature. As has been stated earlier though the Chapter 'heading' uses the expression "public nuisance" but the heading of the section itself uses the expression "conditional order for removal of nuisance". Since there has been no ambiguity with the language used in Section 133(1)(d), the interpretation of which clause is involved in the present case and the said clause confers power on the Magistrate whenever the Magistrate is of the opinion that the building, tent or structure or any tree is in such a condition that it is likely to fall and thereby cause injury to person living or carrying on business in the neighbourhood or passing by, there is no justification for a Court to restrict the place and literal meaning of the clause by looking at the heading of the Chapter. In our considered opinion, therefore, an application by a single individual under Section 133(1)(d) would be maintainable if the building, tent or structure or any tree is in such a condition that the same is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by. We record the aforesaid conclusion on interpreting Section 133(1)(d) and bearing in mind the principles of construction as discussed by us earlier.

9. It would now be appropriate to examine a few decisions cited at the bar particularly the decision of this Court where the divergency of views have been taken. The earliest decision of this Court is that of Khetrabasi Patnaik's case referred to (supra). In that case the old coconut trees of the opposite party were found to be leaning towards the court-yard of the petitioner and the trees were in such a condition that danger was apprehended to the human life. A learned Single Jude of this Court construed Section 133(1)(d) and held that the trees in question might be a public nuisance within the meaning of Section 133, Cr. P. C. and the Magistrate had jurisdiction to take action under the said section. Thus the learned Judge was of the view that apprehension of danger to human life or the inmates of a house over which the trees were leaning would be a public nuisance within the meaning of Section 133 Cr. P. C. In Lal Mohan Patnaik's case referred to (supra) a learned Judge came to hold that proceeding under Section 133 Cr. P. C. are intended to protect the public as a whole against any inconvenience and they are not intended to settle private disputes between different members of the public and if a person has any private right which he wishes to enforce, he should seek redress in a Civil Court. In that particular case considering the notice issued by the Magistrate, the learned Judge came to the conclusion that what was sought to be protected thereby was not a public interest but the interest of a private individual and the public interest did not at all come into th3 picture and accordingly it was held that the proceeding was not maintainable. In our considered opinion, the enunciation of law made in that case to the effect that Section 133 Cr.P.C. is intended to protect public as a whole against any inconvenience is not the correct interpretation particularly when Clauses (c), (d) and (f) are taken into account and unfortunately in this case the earlier decision of this Court in Khetrabasi Patnaik's case has not been noticed. In Gayasundari Devi's case referred to supra, it was held that unless the nuisance is a public nuisance. Section 133 Cr.P.C. cannot be called in aid. Section 133(1)(d) of the Cr.P.C. was for consideration before the learned Judge but without any discussion of law, the learned Judge abruptly came to the conclusion that the provision of Section 133 Cr.P.C. cannon be called in aid unless the nuisance is a public nuisance and he further held that the proceeding under Section 133 Cr.P.C. is a summary one intended to have removal of a public mischief. In view of what we have already stated and in view of our interpretation of the provisions of Section 133(1)(d), we are of the considered opinion that this case has not been correctly decided. Even in this case also the earlier decision of Khetrabasi Patnaik's case has no: been noticed. So far as the decisions of other High Courts are concerned, while the Madhya Pradesh High in AIR 1958 MP 350 (Shaukat Hussain and another v. Sheodayal Saksaina) and the Allahabad High Court in AIR 1942 All. 443 (Ram Dayal Misra v. Mt. Jagadamba Debi and another) support the view taken by this Court in Gayasundari Devi's case. The Rajasthan High Court in AIR 1959 Raj. 44 (Achalchand v. Suraj Raj), the Kerala High Court in 1962 (2) Cri.L.J. 666 (State of Kerala v. Chacko) and the Goa Judicial Commissioner's Court in 1974 Cr.L.J. 522 (Somanath V. Poi Dhungat v. State.) support the view taken in Khetrabasi Patnaik's case. Having examined the provisions of the Act and having applied the principles of interpretation of Statute which we have discussed earlier in detail, we have no doubt in our mind that the provisions contained in Section 133(1)(c),(d) and (f) would apply to a case where the interest of a single or few individuals are concerned and the decisions of this Court in Gayasundari Devi's case as well as Lalmohan Patnaik's case are not the correct expositions of law.