Crimin/al out the effects of degradations but
Crimin/al Procedure Code, 1973 and EnvironmentalProtection.
IntroductionWith the development of the country, the need forenvironmental activism was seen as the development which is a continuingprocess cannot be done at the cost of environmental degradation. The governmentin the country has made laws with respect to every environmental subject andits preservation, whether it is Forest, wildlife, water, air or any otherimportant facet of environment. However, non compliance of these laws brings theculprit or to say, the polluter under the scrutiny of the court. The courts ofthe country have emerged out with many principles of saving the environment andstrived to achieve for environmental preservation. With the ever increasingscope of public Interest litigations in the High courts and the Supreme Courtunder articles 226 and 32 respectively, environmental activists have so in soforth utilized this as a escalator to their motives of protecting theenvironment.
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However, in certain cases where the matter requires immediatenotice, it is important that there should not be much delay as the delay causedwould not only wipe out the effects of degradations but continuation of whichwould cause terrible harm to the mankind and environment.With a motive to address theseproblems as soon as possible and that the common population of the country canget their grievances related to environment addressed, there have been madecertain additions in the Code of Criminal Procedure,1973 where The provisionsof Chapter X of the Criminal Procedure Code of 1973 provide effective, speedyand preventive remedies for public nuisances cases including insanitaryconditions, air, water and noise pollution. The criminal procedure code inIndia is generally known to address over the procedure and other relativetopics of the Criminal Law. The criminal courts in the country primarilyfunction upon the texts of the criminal procedure code. It contains provisionsfor enforcement of various provisions of the substantive law.1 Under section 133 certain powershave been conferred upon the Executive magistrate can make a conditional orderto remove such nuisance, and if the nuisance maker objects to do so, the orderwill be made absolute.
The executive magistrate or the district magistrate orthe sub-divisional magistrate has been empowered with powers to curb thisnuisance at even such state where it has not started. In other words, theauthority here has the power to injunct any act even on apprehension of anysuch happening. The magistrate can act under this provision, either on receiptof a report of a police officer, or on other information, and taking suchevidence that he thinks fit. Moreover, another point to be understood here isthat nuisance mentioned under section 133 covers under its ambit all suchenvironmental and other occurring, which would provide for a speedy andeffective remedy for the issues of local environmental importance. Nuisance isdefined in very liberal terms and includes construction of structures, disposalof substances, conduct of trade or occupation.2The court here as mentioned earlier can take anticipatory actions. The plain text of section 1333 ofthe Code of Criminal Procedure, 1973 is as follows:- 133.
Conditional order forremoval of nuisance. (1) Whenever a DistrictMagistrate or a Sub- divisional Magistrate or any other Executive Magistratespecially empowered in this of behalf by the State Government, on receiving thereport of a police officer or other information and on taking such evidence (ifany) as he thinks fit, considers-(a) that any unlawfulobstruction or nuisance should be removed from any public place or from anyway, 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 anygoods or merchandise, is injurious to the health or physical comfort of thecommunity, and that in consequence such trade or occupation should beprohibited or regulated or such goods or merchandise should be removed or thekeeping thereof regulated; or(c) that the construction ofany building, or, the disposal of any substance, as is likely to occasionconfiguration or explosion, should be prevented or stopped; or(d) that any building, tent orstructure, or any tree is in such a condition that it is likely to fall andthereby cause injury to persons living or carrying on business in theneighbourhood or passing by, and that in consequence the removal, repair orsupport of such building, tent or structure, or the removal or support of suchtree, is necessary; or(e) that any tank, well orexcavation adjacent to any such way or public place should be fenced in suchmanner as to prevent danger arising to the public; or(f) that any dangerous animalshould be destroyed, confined or otherwise disposed of, such Magistrate maymake a conditional order requiring the person causing such obstruction ornuisance, or carrying on such trade or occupation, or keeping any such goods ormerchandise, or owning, possessing or controlling such building, tent,structure, substance, tank, well or excavation, or owning or possessing suchanimal or tree, within a time to be fixed in the order-(i) to remove such obstructionor 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 merchandise, or to regulate the keeping thereof insuch manner as may be directed; or(iii) to prevent or stop theconstruction of such building, or to alter the disposal of such substance; or(iv) to remove, repair orsupport such building, tent or structure, or to remove or support such trees;or(v) to fence such tank, well orexcavation; or(vi) to destroy, confine ordispose 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 ExecutiveMagistrate subordinate to him at a time and place to be fixed by the Order, andshow cause, in the manner hereinafter provided, why the order should not bemade absolute.(2) No order duly made by a Magistrate under this section shall be calledin question in any Civil Court. Explanation- A” publicplace” includes also property belonging to the State, camping grounds andgrounds left unoccupied for sanitary or recreative purposes.History and Origin Judicial activism forpreservation of environment under this section spread its wings much before theRio Treaty and long before it started reaching out to international treaties toprovide ajurisprudential basis for itsdecisions. The innovation to interprete all these sections of criminal law withreference to the environmental protection have been brought about by thejudiciary. The judicial craftsmanshiphas contributed in developing new panorama of remedy for public nuisance asprovided in Criminal Procedure Code, 1973 for the environment protection.4 Atthe time of enactment of this code there was no existence of the Air Act or theWater Act.
Hence, any issue with respect to contamination or pollution of airwater or any part of the surrounding environment was construed as nuisanceunder the scope of this section and was dealt with accordingly by themagistrate under the authority of the state government. The scope of the wordpublic Nuisance was very wide and it covered a variety of problems and was tobe dealt with by the magistrate under the section. The Magistrate under thissection has more importantly to see whether the nuisance caused is publicnuisance. If not the case, the proceedings shall be dealt with under the civilcourt and not under section 133.
The provisions under thissection are justifiable only when it is likely to prevent any of the followingevents from happening:-1. Annoyance2. Injury to humanlife3. Disturbance ofpublic tranquility4.
Order cannot bemade to give advantage to one party This is noteworthy here that allthese factors are very wide and there cannot be sny specific connotations as towhat has to be dealt with exactly under this section and the locusstandi in every case would dependupon the facts of each case and would differ from case-to-case. In the case of RamachandraMalohirao Bhonsle v. Rasikbhai Govardhanbhai Raiyani5the matterwas related Installation and use of electric motor for lifting water to supplyit to other flats in the complex. It caused nuisance to the petitioner who hadpurchased flat before installation of the motor. The matter was reported toSub-Divisional magistrate. Sub- Divisional Magistrate directed that therespondent should remove the electric motor installed below the flat toeliminate noise pollution and electric motor pump should be shifted andinstalled within the premises so that it causes no noise pollution. It waschallenged by the respondent on the basis that jurisdiction under sec. 133 ofthe Criminal Procedure Code can be exercised by the learned ExecutiveMagistrate only in respect of public nuisance and not in respect of privatenuisance.
Further, in response to the order of Magistrate if there is denialof existence of public right over the place or creation of nuisance over apublic placethen the Executive Magistrate isbound to proceed under sec. 137 of the Code of Criminal Procedure. TheExecutive Magistrate shall enquire into denial of existence of public right orcreating nuisance at public place. The High Court Gujarat, in thiscase observed that:- The Executive Magistrate shouldhave kept in mind that unless the nuisance was created at apublic place no direction couldbe given under section 133. There may be instances wherenuisance is created at a publicplace but, members or persons belonging to the public maynot come forward to move anapplication under sec. 133 of the Code of Criminal Procedure.In such situation, even oneperson who is aggrieved from such public nuisance at a publicplace may report the matter tothe Executive Magistrate, and upon such information theExecutive Magistrate can proceedunder sec.
133(1) of the Criminal Procedure Code.Section 133(1) of the Code ofCriminal Procedure provides that, “The Executive Magistratecan proceed under this section onreceiving the report of Police Officer or other information.” The word”other information” includes information given by any person who isaggrieved from public nuisance. So, what is provided under sec. 133 is thatnuisance should be created at a public place. Public place is defined inexplanation to sub-section (2) of sec.
133. It says that, “A public placeincludes also property belonging to the State, camping grounds and grounds leftunoccupied for sanitary or recreative purposes.””The distinct expression’public place’ & ‘any way’ clearly illustrate, that the section comprehendsnot only public places, but “any way” which may be lawfully used bythe public.
Lawful use by the public of “any way” would bring itwithin the ambit of the section. A private place may be frequented by publicand may become a public place for the time it is used. That apart, “publicplace” for purposes of the section, is not restricted to a place dedicatedto public. The expression ‘public’ or ‘public place’ has been understood in alarger sense. If public have access to a place by right, permission or use, itis a public place, even if it is not public property. One test of ascertainingthis will be to see whether there is a right vested in a large number ofpersons as to make them ascertainable and make them a class unascertainable notby vastness of numbers, but by character of class”.
6 As opposed to the I.P.C., the Cr. P.C.provides a far better option in preventingenvironmental damage where itamounts to a public nuisance.
Section 133 of the Code givesan executive magistrate vastpowers put up a stop to public nuisance. Hence this is what makes this moresuitable than the section 190 of the IPC. That is to say, the aggrieved in thiscase is not needed to get into the haphazard proceedings and systems of thecriminal law and can directly approach the magistrate here for quick remedy andget primary injunction over any environmental damage so caused in form ofnuisance to public.
Moreover, under this sectionthere can be an ex-parte order passed if there has been no reply filed undersection 137 by the polluter or the respondent. Hence, there can be an orderpassed by the court without giving a notice to the other party in regards tothe proceedings of the case.7 1 See,Puthucherril, Tony George., One Step Forward, Two Steps Back: Constitutionalismand Environmental Jurisprudence in India2 Shastri,S.
C., Environmental Law, Ed. 3rd, p.713Section 133 Code of Criminal Procedure, 1973.4 K.Rama Joga Rao, Use of Criminal Law Machinery for Environment Protection, (2001)7 SCC (Jour) 585 2001CriLJ8666Augusthy v.
Varkey 1989 (1) KLT 6547Under section 144 there can be an ex-parte order passed by the court withreference to a case brought before the magistrate under section 133 for aexpedient proceeding and redressal of the problem.