A ‘public place’ includes also property belonging to the State, camping grounds and grounds left unoccupied for sanitary or recreative purposes. The public place must be open to the public, i.e., a place to which the public have access by right, permission, usage or otherwise.
The procedure to remove the public nuisances which can be redressed according to Section 133 of the Code of Criminal Procedure through conditional order is as follows:
Whenever a District Magistrate or a sub-divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, on receiving the report of a police officer or other information and on taking such evidence (if any) as he thinks fit, considers—
(a) That any unlawful obstruction or nuisance should be removed from any public place or from any way, river or channel which is or may be lawfully used by the public; or
(b) That the conduct of any trade or occupation, or the keeping of any goods or merchandize, is injurious to the health of physical comfort of the community, and that in consequence such trade or occupation should be prohibited or regulated or such goods or merchandize should be removed or the keeping thereof regulated; or
(c) That the construction of any building or, the disposal of any substance, as is likely to occasion conflagration or explosion should be prevented or stopped; or
(d) That any building, tent or structure, or any tree 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, and that in consequence the removal, repaid, or support of such building, tent or structure, or the removal or support of such tree, is necessary; or
(e) That any tank, well or excavation adjacent to any such way or public place should be fenced in such manner as to prevent danger arising to the public; or
(f) That any dangerous animal should be destroyed, confined or otherwise disposed of, such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation, or keeping any such goods or merchandize, or owning, possessing or controlling such building, tent, structure, substance, tank, well or excavation, or owning or possessing such animal or tree, within a time to be fixed in the order,—
(i) To remove such obstruction or nuisance; or
(ii) To desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation, or to remove such goods or merchandize, or to regulate the keeping thereof in such manner as may be directed; or
(iii) To prevent or stop the construction of such building, or to alter the disposal of such substance; or
(iv) To remove, repair or support such building, tent or structure, or to remove or support such trees; or
(v) To fence such tank, well or excavation; or
(vi) to destroy, confine or dispose of such dangerous animal in the manner provided in the said order; or if he objects so to do, to appear before himself or some other Executive Magistrate subordinate to him at a time and place to be fixed by the order, and show cause, in the manner hereafter provided, why the order should not be made absolute.
The order duly made by a Magistrate under Section 133 of the Code of Criminal Procedure shall not be called in question in any civil Court.
According to Section 12 of the Indian Penal Code, the word ‘public’ includes any class of the public or community; but that class must be numerically sufficient to be designated ‘the public’.
Therefore, one can opine that if a particular individual or his family is only affected by the nuisance, such nuisance cannot be considered to be a public nuisance and hence its removal from any public place cannot be ordered under Section 133.
However, as Section 133(1)(d) does not specify the minimum number of persons that should be living or carrying on business in the neighbourhood, etc., the requirement of the section is satisfied even if the danger is confined to the members of a single household.
The object of Section 133 is to prevent public nuisance that if the magistrate fails to take immediate recourse to Section 133, irreparable damage would be done to the public. However, no action seems possible under Section 133, if the nuisance has been in existence for a long period. In that case, the aggrieved party has to move the civil court for the remedy.
Under Section 133 of the Code, the Magistrate can act on information received from any source either through a police report or other report. Before passing a conditional order under Section 133, a Magistrate is not bound to take evidence, because the proceedings are entirely ex parte.
But the Magistrate should record the evidence under this Section before making the order absolute. He must also accord an opportunity to the persons concerned who are likely to be aggrieved. The proceedings under Section 133 are more or less summary and it cannot be kept pending for a long time.
The allegation was made that red chillies were stored in godown in residential locality and loading, unloading thereof was causing physical discomfort and injury to the health of people in locality.
The sub-divisional Magistrate upon considering evidence of residents in locality came to the conclusion that people in general suffered discomfort and injury to physical health which amounted to public nuisance.
It was held that in case of such allegation it must be shown that public discomfort was considerable and large section of public was affected injuriously. It was held that the Magistrate should conduct inquiry and decide whether there was reliable evidence to the above effect in order to support the allegation.
A general or unconditional order cannot be made under Section 133. Every order must fix a time within which and a place where a person to whom it is directed may appear before the Magistrate and move to have the order set aside or modified. The order should not be vague, indefinite or ambiguous but must be such that the person to whom it is directed must be able to learn as to what he is to do in order to comply with it.
Section 133, Cr.P.C. dealing with public nuisance does not stand impliedly repealed by Pollution Acts:
The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side.
While as noted above the provisions of Section 133 of the Code are in the nature of preventive measures, the provisions contained in the two Acts are not only curative but also preventive and penal.
The provisions appear to be mutually exclusive and the question of one replacing the other does not arise. Above being the position, the High Court was not justified in holding that there was any implied repeal of Section 133 of the Cr. P.C.