Crimin/al out the effects of degradations but

Crimin/al Procedure Code, 1973 and Environmental
Protection.

Introduction

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With the development of the country, the need for
environmental activism was seen as the development which is a continuing
process cannot be done at the cost of environmental degradation. The government
in the country has made laws with respect to every environmental subject and
its preservation, whether it is Forest, wildlife, water, air or any other
important facet of environment. However, non compliance of these laws brings the
culprit or to say, the polluter under the scrutiny of the court. The courts of
the country have emerged out with many principles of saving the environment and
strived to achieve for environmental preservation. With the ever increasing
scope of public Interest litigations in the High courts and the Supreme Court
under articles 226 and 32 respectively, environmental activists have so in so
forth utilized this as a escalator to their motives of protecting the
environment. However, in certain cases where the matter requires immediate
notice, it is important that there should not be much delay as the delay caused
would not only wipe out the effects of degradations but continuation of which
would cause terrible harm to the mankind and environment.

With a motive to address these
problems as soon as possible and that the common population of the country can
get their grievances related to environment addressed, there have been made
certain additions in the Code of Criminal Procedure,1973 where The provisions
of Chapter X of the Criminal Procedure Code of 1973 provide effective, speedy
and preventive remedies for public nuisances cases including insanitary
conditions, air, water and noise pollution. The criminal procedure code in
India is generally known to address over the procedure and other relative
topics of the Criminal Law. The criminal courts in the country primarily
function upon the texts of the criminal procedure code. It contains provisions
for enforcement of various provisions of the substantive law.1

Under section 133 certain powers
have been conferred upon the Executive magistrate can make a conditional order
to remove such nuisance, and if the nuisance maker objects to do so, the order
will be made absolute. The executive magistrate or the district magistrate or
the sub-divisional magistrate has been empowered with powers to curb this
nuisance at even such state where it has not started. In other words, the
authority here has the power to injunct any act even on apprehension of any
such happening. The magistrate can act under this provision, either on receipt
of a report of a police officer, or on other information, and taking such
evidence that he thinks fit. Moreover, another point to be understood here is
that nuisance mentioned under section 133 covers under its ambit all such
environmental and other occurring, which would provide for a speedy and
effective remedy for the issues of local environmental importance. Nuisance is
defined in very liberal terms and includes construction of structures, disposal
of substances, conduct of trade or occupation.2
The court here as mentioned earlier can take anticipatory actions.

 

 

The plain text of section 1333 of
the Code of Criminal Procedure, 1973 is as follows:-

 

133. Conditional order for
removal of nuisance.

 

(1) Whenever a District
Magistrate or a Sub- divisional Magistrate or any other Executive Magistrate
specially empowered in this of 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 merchandise, is injurious to the health or physical comfort of the
community, and that in consequence such trade or occupation should be
prohibited or regulated or such goods or merchandise 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
configuration 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, repair 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
merchandise, 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 merchandise, 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 hereinafter provided, why the order should not be
made absolute.

(2) No order duly made by a Magistrate under this section shall be called
in question in any Civil Court.

Explanation- A” public
place” includes also property belonging to the State, camping grounds and
grounds left unoccupied for sanitary or recreative purposes.

History and Origin

 

Judicial activism for
preservation of environment under this section spread its wings much before the
Rio Treaty and long before it started reaching out to international treaties to
provide a

jurisprudential basis for its
decisions. The innovation to interprete all these sections of criminal law with
reference to the environmental protection have been brought about by the
judiciary.  The judicial craftsmanship
has contributed in developing new panorama of remedy for public nuisance as
provided in Criminal Procedure Code, 1973 for the environment protection.4 At
the time of enactment of this code there was no existence of the Air Act or the
Water Act. Hence, any issue with respect to contamination or pollution of air
water or any part of the surrounding environment was construed as nuisance
under the scope of this section and was dealt with accordingly by the
magistrate under the authority of the state government. The scope of the word
public Nuisance was very wide and it covered a variety of problems and was to
be dealt with by the magistrate under the section. The Magistrate under this
section has more importantly to see whether the nuisance caused is public
nuisance. If not the case, the proceedings shall be dealt with under the civil
court and not under section 133. The provisions under this
section are justifiable only when it is likely to prevent any of the following
events from happening:-

1. Annoyance

2. Injury to human
life

3. Disturbance of
public tranquility

4. Order cannot be
made to give advantage to one party

 

This is noteworthy here that all
these factors are very wide and there cannot be sny specific connotations as to
what has to be dealt with exactly under this section and the  locus
standi  in every case would depend
upon the facts of each case and would differ from case-to-case. In the case of Ramachandra
Malohirao Bhonsle v. Rasikbhai Govardhanbhai Raiyani5
the matter
was related Installation and use of electric motor for lifting water to supply
it to other flats in the complex. It caused nuisance to the petitioner who had
purchased flat before installation of the motor. The matter was reported to
Sub-Divisional magistrate. Sub- Divisional Magistrate directed that the
respondent should remove the electric motor installed below the flat to
eliminate noise pollution and electric motor pump should be shifted and
installed within the premises so that it causes no noise pollution. It was
challenged by the respondent on the basis that jurisdiction under sec. 133 of
the Criminal Procedure Code can be exercised by the learned Executive
Magistrate only in respect of public nuisance and not in respect of private
nuisance. Further, in response to the order of Magistrate if there is denial
of existence of public right over the place or creation of nuisance over a
public place

then the Executive Magistrate is
bound to proceed under sec. 137 of the Code of Criminal Procedure. The
Executive Magistrate shall enquire into denial of existence of public right or
creating nuisance at public place.

 

The High Court Gujarat, in this
case observed that:-

 

The Executive Magistrate should
have kept in mind that unless the nuisance was created at a

public place no direction could
be given under section 133. There may be instances where

nuisance is created at a public
place but, members or persons belonging to the public may

not come forward to move an
application under sec. 133 of the Code of Criminal Procedure.

In such situation, even one
person who is aggrieved from such public nuisance at a public

place may report the matter to
the Executive Magistrate, and upon such information the

Executive Magistrate can proceed
under sec. 133(1) of the Criminal Procedure Code.

Section 133(1) of the Code of
Criminal Procedure provides that, “The Executive Magistrate

can proceed under this section on
receiving the report of Police Officer or other information.” The word
“other information” includes information given by any person who is
aggrieved from public nuisance. So, what is provided under sec. 133 is that
nuisance should be created at a public place. Public place is defined in
explanation to sub-section (2) of sec. 133. It says that, “A public place
includes also property belonging to the State, camping grounds and grounds left
unoccupied for sanitary or recreative purposes.”

“The distinct expression
‘public place’ & ‘any way’ clearly illustrate, that the section comprehends
not only public places, but “any way” which may be lawfully used by
the public. Lawful use by the public of “any way” would bring it
within the ambit of the section. A private place may be frequented by public
and may become a public place for the time it is used. That apart, “public
place” for purposes of the section, is not restricted to a place dedicated
to public. The expression ‘public’ or ‘public place’ has been understood in a
larger sense. If public have access to a place by right, permission or use, it
is a public place, even if it is not public property. One test of ascertaining
this will be to see whether there is a right vested in a large number of
persons as to make them ascertainable and make them a class unascertainable not
by 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 preventing

environmental damage where it
amounts to a public nuisance. Section 133 of the Code gives

an executive magistrate vast
powers put up a stop to public nuisance. Hence this is what makes this more
suitable than the section 190 of the IPC. That is to say, the aggrieved in this
case is not needed to get into the haphazard proceedings and systems of the
criminal law and can directly approach the magistrate here for quick remedy and
get primary injunction over any environmental damage so caused in form of
nuisance to public.

Moreover, under this section
there can be an ex-parte order passed if there has been no reply filed under
section 137 by the polluter or the respondent. Hence, there can be an order
passed by the court without giving a notice to the other party in regards to
the proceedings of the case.7

 

1 See,
Puthucherril, Tony George., One Step Forward, Two Steps Back: Constitutionalism
and Environmental Jurisprudence in India

2 Shastri,
S.C., Environmental Law, Ed. 3rd, p.71

3
Section 133 Code of Criminal Procedure, 1973.

4 K.
Rama Joga Rao, Use of Criminal Law Machinery for Environment Protection, (2001)
7 SCC (Jour) 58

5 2001CriLJ866

6
Augusthy v. Varkey 1989 (1) KLT 654

7
Under section 144 there can be an ex-parte order passed by the court with
reference to a case brought before the magistrate under section 133 for a
expedient proceeding and redressal of the problem.