Indian Journal of Integrated Research in Law Volume II Issue II | ISSN: 2583-0538

LAW RELATING TO PUBLIC NUISANCE IN THE INDIAN

PENAL CODE

Atishay Agarwal, Narsee Monjee Institute of Management Studies, School of Law (Hyderabad)

1. INTRODUCTION

The Statutory Provision relating to public nuisance is given under section 268 of IPC. The law
was introduced on 1st January 1862 the date on which the Indian Penal Code 1860 received the
assent of Governor General.

Traditionally, in India environmental problems used to be addressed through private law

doctrines such as trespass, nuisance, strict liability or negligence in India or remedies available
under Indian Penal Code or Criminal Procedure Code. As per section 268 of the Indian Penal
Code, 1860, 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. A
common nuisance is not excused on the ground that it causes some convenience or advantage.
The object and purpose behind section 133 CrPC is essentially to prevent public nuisance
which involves a sense of urgency in the sense that if the magistrate fails to take course
immediately irreparable danger would be done to the public. The provisions of chapter X CrPC
should be so worked as not to become themselves a nuisance to the community at large.
Although, every person is bound to so use his property that it may not work legal damage or
harm to his neighbor, yet on the other hand, no one has a right to interfere with the free and full
enjoyment by such person of his property, except on clear and absolute proof that such use of
it by him is producing legal damage or harm.

2. MEANING OF PUBLIC NUISANCE:

Section 268 of The Indian Penal Code

Section 268 defines a doer of a public nuisance as one who: (i) does any act or is guilty of an
illegal omission, (ii) which causes (a) any common injury, (b) danger or (c) annoyance to (iii)

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the public or to the people in general, who dwell or to occupy property in the vicinity; or (iv)
causes injury, obstruction, danger or annoyance to persons who may have any occasion to use
any public right. Public nuisance is an act of doing something that tends to the annoyance of
the whole community in general or neglecting to do anything that the common good requires.
It is an act or omission affecting the public at large, or some considerable portion of them, and
interferes with rights which the members of the community might otherwise enjoy.

Public nuisance is based on the principle embodied in the maxim of civil law sic uteretuout
rem publicam non laedas, which means ‘enjoy your property in such a way as not to injure
the rights of the public.’

Meaning of Public

The term ‘public’ is defined in s. 12 of IPC, 1860. The word ‘public’ includes any class of the
public or any community. Thus, a class or community residing a particular locality may come
within the term ‘public.

In popular parlance, the word ‘public’ means the general body of humankind or of a nation,
state or community. But as defined in the IPC, it includes any class of the public even so small,
but still large enough to form a class and which excludes the possibility of a mere individual.
So again, the term ‘community’ is used here interchangeably with ‘public’ and as a community
may consist of a sect, race or body of men united on any given principle. A class or community
inhabiting a particular locality may come within the term ‘public’.

Act or Illegal Omission

The words illegal omissions in this section must be construed in the light of the definition of
words acts, act and illegal given in ss 32, 33 and 43, IPC, respectively. Every omission will not
constitute an offence under this section. Unless the omission which causes the nuisance as an
illegal omission in the above sense, there will be no public nuisance.

Section 32 in The Indian Penal Code

Words referring to acts include illegal omissions – In every part of this Code, except where a
contrary intention appears from the context, words which refer to acts done extend also to
illegal omissions.

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Section 33 in The Indian Penal Code

“Act”, “Omission” – The word “act” denotes as well a series of acts as a single act: the word
“omission” denotes as well a series of omissions as a single omission.

Section 43 in The Indian Penal Code

“Illegal”, “Legally bound to do” – The word “illegal” is applicable to everything which is an
offence or which is prohibited by law, or which furnishes ground for a civil action; and a person
is said to be “legally bound to do” whatever it is illegal in him to omit.

Public Nuisance Causing Some Advantage or Convenience

It is stated that a common nuisance cannot be excused on the ground that it causes some
convenience or advantage. This means that it is no defense to a charge of committing a common
nuisance that the act in question was done to prevent or mitigate some harm to the accused’s
interest or to protect his own lands and crops.

Slaughtering of cattle cannot be deemed to be a public nuisance, unless the act is done in places
and in a manner where it might prove to be a public nuisance. Mere sale of meat or fish near
or on a public road cannot be deemed a nuisance though the fact that such exposure is offensive
to the religious susceptibilities may be a matter for executive action.

Passive Smoking

K Ramakrishnan Vs State of Kerala,1

In this case it was argued that smoking of tobacco in any form of public places makes the non-
smokers ‘passive smokers’ and thereby causes public nuisance as defined under s 268 of the
IPC. The Kerala high court, therefore, was urged to declare smoking of tobacco not only illegal
as it causes public nuisance but also unconstitutional. The high court held that tobacco smoking
in public places in the form of cigarettes, cigars, or beedis falls within the mischief of the penal
provisions relating to public nuisance. Relying upon the right to life guaranteed under article
21 of the constitutional the high court declared that smoking of tobacco is unconstitutional.

1
AIR 1999 KER 385

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3. PUNISHMENT ON PUBLIC NUISANCE:

Section 290 of IPC:

The punishment attracted by an act of public nuisance. According to it, any person guilty of
committing public nuisance is to be punished with a fine which may extend up to 200 rupees.

Section 291 of IPC:

If an injunction has been delivered against the defendant, and he still does not cease the act of
nuisance, he would either be punished for a term of imprisonment that may extend up to 6
months, or be charged a fine, or both.

Conditional Order for Removal of Nuisance and Consequential:

A. CONDITIONAL ORDER OF EXECUTIVE MAGISTRATE

Conditional Order for Removal of Nuisance.

The purpose of this section is to prevent public nuisance, if a magistrate fails to take immediate
recourse to section 133, irreparable damage would be done to the public. It is intended to
remove public nuisance and can be invoked in urgent cases because the nuisance can
sometimes be fraught with potential danger requiring immediate action2.

An executive magistrate upon receiving a police report or other information in respect of public
nuisance can exercise powers under this section in the six circumstances enumerated in sub
section (1). This section empowers a magistrate to deal with specific public nuisance and it
provides a summary remedy for their removal but the pre- requisite is that there must be an
imminent danger to property and consequential nuisance to the public.

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

2
Jain, A.K. criminal law- II 2018

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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.3

B. SERVICE OR NOTIFICATION OF ORDER

• The order shall, if practicable, be served on the person against whom it is made, in the
manner herein provided for service of a summons.4

The order shall be served to the person against whom it is made in the manner provided for
service of summons.

• If such order cannot, be so served, it shall be notified by proclamation, published in

such manner as the State Government may, by rules, direct, and a copy thereof shall be
struck up at such place or places as may be fittest for conveying the Information to such
person.5

If an order made under s. 134(1) remains unserved, the same shall be notifies by proclamation,
by publishing it in such a manner as is prescribed by the state government in this behalf and a
copy of the same shall be stuck up at a place from where the information can be conveyed to
such person against whom the order is made.

C. PERSON TO WHOM ORDER IS ADDRESSED TO OBEY OR SHOW CAUSE THE PERSON

AGAINST WHOM SUCH ORDER IS MADE SHALL

a) perform, within the time and in the manner specified in the order, the act directed thereby;
or
b) appear in accordance with such order and show cause against the same.6

Under this section, two alternatives are given to a person either he can come to perform the
acts directed by such order within the prescribed time or he can show cause for his non-
compliance with the order. For the purpose of determining the existence or non-existence of

3
Khanalapil Removal of Public Nuisances (Section 133 of Cr.P.C)
http://www.shareyouressays.com/knowledge/removal-of-publicnuisances-section-133-of-crpc/119538
4
S.134(1) OF CRIMINAL PROCEDURE CODE, 1973
5
S. 134(2) OF CRIMINAL PROCEDURE CODE, 1973
6
S. 135 of CRIMINAL PROCEDURE CODE, 1973

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the public right, a competent civil court has to finally decide after application of judicial mind
and due appraisal of the evidences.

D. CONSEQUENCES OF HIS FAILING TO DO SO

If such person does not perform such act or appear and show cause, he shall be liable to the
penalty prescribed in that behalf in section 188 of the Indian Penal Code (45 of 1860) and the
order shall be made absolute.

If A Person Does Not Perform Such Act or Appear to Show Cause, He Shall Be Liable To The
Penalty Prescribed Under Section 188 Of Indian Penal Code, 1860.

Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to

promulgate such order, he is directed to abstain from a certain act, or to take certain order with
certain property in his possession or under his management disobeys such direction, shall, if
such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple
imprisonment for a term which may extend to one month or with fine which may extend to two
hundred rupees, or with both;

And if such disobedience causes or tends to cause danger to human life, health or safety, or
causes or tends to cause a riot or affray, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which may extend to one
thousand rupees, or with both.7

Section 136 clearly shows that a preliminary order made order under section 133 can be made
absolute if a person fails to appear on receipt of preliminary order. If such person appears or
denies the public right and thereafter fails to appear to lead evidence the magistrate cannot
invoke section 136 to make the preliminary order absolute.8

4. PROCEDURE WHERE EXISTENCE OF PUBLIC RIGHT IS DENIED SECTION 137 OF

CRPC:

Section 137 of CRPC:

7
S. 188 OF INDIAN PENAL CODE 1860
8
PAVITHRANMADUKKANI VS. KONJUKOCHU, 1982 CRILJ 103, 104 (KER)

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Where an order is made under section 113 for the purpose of preventing obstruction, nuisance
or danger to the public in the use of any way river, channel or place, the Magistrate shall, on
the appearance before him of the person against whom the order was made, question him as to
whether he denies the existence of any public right in respect of the way, river, channel or
place, and if he does so, the Magistrate shall, before proceeding under section 138, inquire into
the matter.

If in such inquiry the Magistrate finds that there is any reliable evidence in support of such
denial, he shall stay the proceedings until the matter of the existence of such right has been
decided by a competent Court; and if he finds that there is no such evidence, he shall proceed
as laid down in section 138.

A person who has, on being questioned by the Magistrate under Sub-Section (1), failed to deny
the existence of a public right of the nature therein referred to, or who, having made such denial,
has failed to adduce reliable evidence in support thereof, shall not in the subsequent
proceedings be permitted to make any such denial.

The section provides that where the existence of the public right is denied, the Magistrate has
to make an inquiry. He has to make sure that reliable evidence actually exists in support of the
denial. He need not take any evidence, where the Magistrate finds that there is no reliable
evidence in support of the denial of a public right; he should proceed further under Section 138
of the Code.9

When the Magistrate passes conditional order against the person, he shall ask him as to whether
that person denies the existence of any public path. If he denies the existence of public path,
the Magistrate will hold an inquiry as contemplated by Section 137, Cr. P.C. The burden of
proof lies upon the party who denies the existence of public path.

However, in such an inquiry both the parties are entitled to adduce their evidence against each
other so as to enable the Court to arrive at a particular finding. The Magistrate is bound to give
an opportunity to the other party to lead the evidence in rebuttal under Section 137 (2). Where
the Magistrate had not given opportunity to the other party to lead evidence in rebuttal, –the

9
Gangaraddi, Sanju Share Essay http://www.shareyouressays.com/knowledge/section-137-of-code-of-criminal-
procedure-1973-cr-pc-explained/115056

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order of the Magistrate was bad in law. Therefore, the Sessions Judge had rightly allowed the
revision.10

The public nuisance was alleged to have been committed by unauthorized construction on a
public path, but the person concerned denied that it was a public path.26 The Magistrate,
without recording a finding whether denial was correct or not, passed an order under Section
133. It was held that in the absence of such finding, removal order was erroneous and therefore,
liable to be set aside.

The scope of inquiry by Magistrate under this section is limited. It is solely for the purpose of
finding out whether there is any necessity for a detailed inquiry under Section 138 and this is
why there is no necessity for weighing evidence at this stage. The inquiry under this section is
to be confined only to decide about the denial of the existence of a public right.

Section 138 of CRPC Procedure Where He Appears to Show Cause:

a) If the person against whom an order under section 133 is made appears and shows cause
against the order, the Magistrate shall take evidence in the matter as in a summons-case.
b) If the Magistrate is satisfied that the order, either as originally made or subject to such
modification as he considers necessary, is reasonable and proper, the order shall be made
absolute without modification or, as the case may be, with such modification.
c) If the Magistrate is not so satisfied, no further proceedings shall be taken in the case.

The magistrate is not permitted to take evidence by way of an affidavit for the purpose of
proceedings under section 133, he is bound to record evidence in the same manner as is
recorded in a summons case. It is a mandatory provision. It is compulsory for him to take
evidence in the matter and therefore, he cannot just dispose of the matter without taking any
evidence. If A Preliminary Order has been passed by the magistrate under section 133 and the
person appears or show cause against such conditional order, the magistrate can make the order
absolute under sub-section (2). it is an obligation for the magistrate to record evidence and then
after being satisfied that the order either as originally made or subject to such modification is
reasonable and proper make such order absolute with or without modifications.

The order under section 138(2) shall be speaking order, i.e., it shall contain the point or points
for determination of the decision, reasons for the decision and the final decision. If the

10
Supra note 24 26SRI RAN V. STATE OF U.P.

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magistrate is satisfied after conducting the inquiry that there is no need of taking any further
proceedings, he shall take no further action.

Section 139 of CRPC Power of Magistrate to Direct Local Investigation and Examination
of an Expert:

The Magistrate may, for the purposes of an inquiry under section 137 or section 138-

a) direct a local investigation to be made by such person as he thinks fit; or

b) summon and examine an expert.

The magistrate under section 139 can direct a local investigation to be made by the person as
he thinks fit for the inquiry. A local investigation does not merely mean one’s own observation
of the things but even ascertainment of facts by recording the statement of certain witnesses.

Section 140 of CRPC Power of Magistrate to Furnish Written Instructions, etc.:

1. Where the Magistrate directs a local investigation by any person under section 139, the
Magistrate may-
a. furnish such person with such written instruction as may seem necessary for his
guidance;
b. declare by whom the whole or any part of the necessary expenses of the local
investigation shall be paid.

The magistrate shall give written instructions to the person directed to carry out local
investigation. The order shall direct as to who will bear the expenses of the investigation,
whether the whole or any part of such necessary expenses.

2. The report of such person may be read as evidence in the case.

The report submitted by such person after conducting the local investigation would be read as
evidence in the case.

3. Where the Magistrate summons and examines an expert under section 139, the
Magistrate may direct by whom the costs of such summoning and examination shall be
paid.

There may arise a situation in which the magistrate may summon and examine an expert under

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section 139 for the purpose of investigation. Therefore, he can also order or direct as to who
will bear the expenses of calling as an expert for his opinion.

Section 141 of CRPC Procedure on Order Being Made Absolute and Consequences of
Disobedience:

1- When an order has been made absolute under section 136 or section 138, the Magistrate
shall give notice of the same to the person against whom the order was made, and shall
further require him to perform the act directed by the order within a time to be fixed in
the notice, and inform him that, in case of disobedience, he will be liable to the penalty
provided by section 188 of the Indian Penal Code.

The magistrate has to inform the person against whom an absolute order has been passed under
section 136 and the acts that he is required to perform by such order within the prescribed time.
If, the person against whom such absolute order has been passed disobeys it, he will be liable
under section 188 of the Indian penal code 1860.

2- If such act is not performed within the time fixed, the Magistrate may cause it to be
performed, and may recover the costs of performing it, either by the sale of any
building, goods or other property removed by his order, or by the distress and sale of
any other movable property of such person within or without such Magistrate’s local
jurisdiction and if such other property is without such jurisdiction, the order shall
authorize its attachment and sale when endorsed by the Magistrate within whose local
jurisdiction the property to be attached is found.

This sub section empowers the magistrate to attach the property of a person who fails to
perform a particular act within the prescribed time. The cost of performance can be recovered
by sale of any building, goods or by sale and distress of any other movable property. The
magistrate can attach the property within his or out of his jurisdiction for recovery of cost.

3- No suit shall lie in respect of anything done in good faith under this section.

No suit shall be instituted in respect of anything done in good faith.

Foreign Nation Law on Public Nuisance:

1- U.S.

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Many states have limited instances where a claim of nuisance may be brought. Such limitation
often became necessary as the sensibilities of urban dwellers were offended by smells of
agricultural waste when they moved to rural locations. For example: many states and provinces
have "right to farm" provisions, which allow any agricultural use of land zoned or historically
used for agriculture.

There are two classes of nuisance under the American law: a nuisance in fact, or "nuisance per
accidents", and a nuisance per se. The classification determines whether the claim goes to the
jury, or gets decided by the judge. An alleged nuisance in fact is an issue of fact to be
determined by the jury, who will decide whether the thing (or act) in question created a
nuisance, by examining its location and surroundings, the manner of its conduct, and other
circumstances. A determination that something is a nuisance in fact also requires proof of the
act and its consequences.

By contrast, a nuisance per se is "an activity, or an act, structure, instrument, or occupation

which is a nuisance at all times and under any circumstances, regardless of location or
surroundings." Liability for a nuisance per se is absolute, and injury to the public is presumed;
if its existence is alleged and established by proof, it is also established as a matter of law.
Therefore, a judge would decide a nuisance per se, while a jury would decide a nuisance in
fact.

In some states, courts and legislatures have created vague and ill-defined definitions to describe
what constitutes a public nuisance. For example, Florida's Supreme Court has held that a public
nuisance is anything that causes "annoyance to the community or harm to public health."

2- U.K

Spencer (1989 at 59) describes the offence as "a rag-bag of odds and ends which we should
nowadays call 'public welfare offences'". But the common feature of the crime is that members
of the public suffer a common injury through interference with rights which they enjoy as
citizens.

A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act
not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission
is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the
public in the exercise or enjoyment of rights common to all Her Majesty's subjects.

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Case Laws

1. Ram Autar v State of Uttar Pradesh:

The appellants were carrying on trade of auctioning vegetables. These vegetables were brought
in carts, which were parked on the public road outside the building where the auctioning took
place. It was alleged that the carts which brought in the vegetables were obstructing the road.
It was also alleged that the trade was injurious to the health and physical comfort of the
community. The appellants were asked to stop the auctioning under s 133, CrPC. The Supreme
Court, however, held that the appellants who were auctioning the vegetables inside their private
house did not cause any obstruction on the road. If persons who participated in the auction
obstructed the road, the appellants who carried on the auction could not be said to cause the
obstruction. The Supreme Court held that merely because some noise is caused during the
auction and people preferring perfect peace might not like it, cannot be said to be injurious to
the physical comfort or health of the community. The court observed that in the conduct of
trades of this nature, there is bound to be some noise in the trading localities, which may
produce some discomfort, but trade is also at the same time for the good of the community. So,
some amount of noise has to be borne in at least that part of the town where such trade is
ordinarily carried on.11

2. Gobind Singh V. Shanti Swarup:

A baker had constructed an oven and a chimney where he baked his products. Smoke emitted
by the chimney was very high and a very strong wind could carry the flames over a distance
and cause a conflagration. It was held to be was injurious to the health of the people.

The negligent blasting of stones in a quarry, so as to endanger the safety of persons living in
the vicinity, is a public indictable nuisance. So, the erection of buildings and making fires that
send forth noxious, offensive and stinking smoke and making great quantities of noxious,
offensive and stinking liquors near the common highway and near the dwelling houses of
several of the inhabitants, whereby the air was impregnated with noisome and offensive smells
was held to be a common nuisance. So also allowing a building near a highway, which is
ruinous and dangerous to the public, is a common nuisance.12

11
AIR 1962 SC 1794
12
AIR 1979 SC 143

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Conclusion

This study concludes that the general rule is that a person may use his land or personal property
in any manner he sees fit. However, this rule is subject to limitation. The owner must use his
property in a reasonable manner. A nuisance arises whenever a person uses his property to
cause material injury or annoyance to a reasonable neighbour. Odors, dust, smoke, other
airborne pollutants, water pollutants and hazardous substances have all been held to be
nuisance. Under both private and public nuisance law, the plaintiff must prove that the
defendant's activity unreasonably interfered with the use or enjoyment of a protected interest
and caused the plaintiff substantial harm. The trier of fact determines whether an activity is
unreasonable by balancing the social utility of the activities against the harm they create.
Private nuisance actions to gain compensation and force polluters to discontinue interference
with their physical private property as well as with their comfort and enjoyment of their
property. Public nuisance law protects from interference a "right common to the general
public." Plaintiffs may bring a public nuisance action if there are damages, interference, or
inconvenience to the public. A state may assert a public nuisance action as an exercise of its
police powers the typical situation. A private citizen may bring a public nuisance action only
if he or she can show that he or she has suffered from a harm that can be distinguished from
that suffered by the members of the general public.

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References

1. Object of Section 133 of CrPC is to protect public from public nuisance; should not be used
to settle private disputes: J&K HC. Available At:
https://www.scconline.com/blog/post/tag/public-nuisance/
2. Feed your pets, but without annoying your neighbors: Bombay HC Available At:
https://www.livelaw.in/tags/Nuisance
3. Kar HC | Trade license is necessary for storage and distribution of ‘Auto LPG’ since said
business activity is hazardous and likely to cause nuisance ,Available At:
https://www.scconline.com/blog/post/tag/nuisance/
4. Anti-CAA protest: Five, including two journos, booked for Public Nuisance.
https://timesofindia.indiatimes.com/topic/public-nuisance
5. Textbook on Indian Penal Code, Seventh Edition, Chapter 14th (Public Nuisance), K D
Gaur, Page No. (601 to 604)
6. PSA Pillai’s Criminal Law, Tenth Edition, Chapter (Public Nuisance), By- Dr. K I Vibhute,
Page No. (681 to 686)
7. Ratan Lal Dheeraj Lal, Chapter (Public Nuisance), Page No. (388 to 395)

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