Document Fragment View

Matching Fragments

Their Lordships have categorically held that the Magistrate's responsibility under Section 133 is to order removal "within a time to be fixed in the order." But in the case on hand, the first respondent has not fixed any time for removal of the public nuisance but he has banned the activities without fixing time.

31. In 2003 (7) SCC 389 [State of M.P. v. Kedia Leather & Liquor Ltd. And others] the Supreme Court has dealt with the definition of the term "Public nuisance" as follows:

"8. Section 133 of the Code appears in Chapter X of the Code which deals with maintenance of public order and tranquility. It is a part of the heading 'public nuisance'. The term 'nuisance' as used in law is not a term capable of exact definition and it has been pointed out in Halsbury's Laws of England that "even at the present day there is not entire agreement as to whether certain acts or omissions shall be classed as nuisances or whether they do not rather fall under other divisions of the law of tort".

In Vasant Manga Nikumba and Ors. v. Baburao Bhikanna Naidu (deceased) by Lrs. and Anr. (1995 Supp. (4) SCC 54) = 1996 SCC (Cri) 27 it was observed that nuisance is an inconvenience which materially interferes with the ordinary physical comfort of human existence. It is not capable of precise definition. To bring in application of Section 133 of the Code, there must be imminent danger to the property and consequential nuisance to the public. The nuisance is the concomitant act resulting in danger to the life or property due to likely collapse etc. The object and purpose behind Section 133 of the Code is essentially to prevent public nuisance and involves a sense of urgency in the sense that if the Magistrate fails to take recourse immediately irreparable damage would be done to the public. It applies to a condition of the nuisance at the time when the order is passed and it is not intended to apply to future likelihood or what may happen at some later point of time. It does not deal with all potential nuisance, and on the other hand applies when the nuisance is in existence. It has to be noted that some times there is a confusion between Section 133 and Section 144 of the Code. While the latter is more general provision the former is more specific. While the order under the former is conditional, the order under the latter is absolute. The proceedings are more in the nature of civil proceedings than criminal proceedings."

Their Lordships have observed that the order under Section 133 Cr.P.C shall be a conditional one.

32. The above said decision has been referred in a later Judgment of the Apex Court in (2005) 9 SCC 36 [Kachrulal Bhagirath Agrawal and others v. State of Maharashtra and others]. In addition to this, Their Lordships have also laid down the principles as follows:

"11.The guns of Section 133 go into action wherever there is public nuisance. The public power of the 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. "All power is a trust that we are accountable for its exercise that, from the people, and for the people, all springs and all must exist". The conduct of the trade must be injurious in presenti to the health or physical comfort of the community. There must, at any rate, be an imminent danger to the health or the physical comfort of the community in the locality in which the trade or occupation is conducted. Unless there is such imminent danger to the health or physical comfort of that community or the conduct of the trade and occupation is in fact injurious to the health or the physical comfort of that community, an order under Section 133 cannot be passed. A conjoint reading of Sections 133 and 138 of the Code discloses that it is the function of the Magistrate to conduct an enquiry and to decide as to whether there was reliable evidence or not to come to the conclusion to act under Section 133."

37. The learned counsel for the petitioners placed reliance upon an earlier decision of the Allahabad High Court in 1886 ILR 8 All 99 [Queen-Empress v. Jokhu and Another] wherein it is observed as follows:-

"5. The authority under which a Magistrate can order or enjoin a person against repeating or continuing a public nuisance is Section 143 of the Criminal Procedure Code; and it is the infringement of this order or injunction that is punishable under Section 291 of the Indian Penel Code; and it is clear that what is contemplated is an order addressed to a particular person (see Schedule V, Form 20)."