LAW OF CRIMES AND ENVIRONMENT

PUBLIC NUISANCE Public nuisance is an unreasonable interference with a right common to general public. It is both a tort and crime, thus action can be brought before a court either by a civil or criminal action. REMEDIES FOR PUBLIC NUISANCE Section 268 of Indian Penal Code 1860 A criminal prosecution for the offence of causing public nuisance under section 268 of Indian Penal Code, 1860 which makes public nuisance a crime it says any omission or commission of an act which hurts, annoys, or offends a person, it is a case of public nuisance. Under 290 of IPC a punishment in the form of fine of Rs. 200 is prescribed for this. PROVISIONS UNDER THE CRIMINAL PROCEDURE CODE, 1973 Chapter X CrPC- Part B has provided a provision for public nuisance which relates to environmental pollution. Section 133 of CrPC provides an independent, speedy and summary remedy against public nuisance. The section empowers a District Magistrate, Sub- Divisional Magistrate or Executive Magistrate specially empowered in this behalf to pass a conditional order for the removal of a public nuisance within a fixed period of time. The order is conditional because it is only a preliminary order. When a person fails to appear and show cause, or when the court is satisfied on the evidence adduced that the initial order was proper, the order is made final otherwise it is vacated. The magistrate may act on information received from a police report or any other source including a complaint made by a citizen. Conditions precedent for the application of Section 133 CrPC In order to provide a sanction under Section 133 the Magistrate must be satisfied that1. It is a public nuisance i.e. the number of persons injuriously affected is so considerable that they may reasonably be regarded as the public or a portion of it. 2. It is not a private dispute between different members of the public for which the proper forum is the civil court. 3. It is a case of great emergency of imminent danger to the public interest.

Although the magistrates power to issue a conditional order under section 133 appears discretionary, the Supreme Court has interpreted the language to be mandatory. The imperative tone of section 133 CrPC read with punitive temper of section 188 IPC make the prohibitory act a mandatory duty. (Municipal Council, Ratlam v Vardhichand AIR 1980 SC 1622). Once a magistrate has before him evidence of a public nuisance, he must order removal of the nuisance, within a fixed time. The person directed to remove the nuisance must either comply with the order or show cause against it. Where he or she opposes the order, the court must initiate an enquiry and calls on the parties to adduce evidence. Moreover, to assist the enquiry, the magistrate may direct a local investigation to ascertain facts or summon expert witnesses. If measures are necessary to prevent imminent danger or serious injury to the public, the court may issue an injunction pending an inquiry. Failure to comply with a final order within the specified time attracts the penalty provided by section 188 of the Indian Penal Code for disobedience of an order of a public servant. A magistrate, however, may not pass a final order that exceeds the conditional order in scope. (See Govind Singh v Shanti Sarup AIR 1979 SC 143) There are other special or local laws dealing with nuisance but the powers of a magistrate to deal with pollution under section 133 are not curtailed by the Air (Prevention and Control) Act of 1981 or the Water (Prevention and Control of Pollution) Act of 1974.

MUNICIPAL COUNCIL, RATLAM v VARDHICHAND (AIR 1980 SC 1622) The significance of this case is that in it the Supreme Court for the first time treated an environmental problem differently from an ordinary tort or public nuisance. Judicial Activism in this case compelled the M.P. Municipality to provide sanitation and drainage despite the budgetary constraints, thereby enabling the poor to live with dignity. Also the court interpreted Sec.133 CrPC to impose a mandatory duty on a magistrate to remove a public nuisance whenever one exists. (See the case in Detail)