URGENT CASES OF NUISANCE OR APPREHENDED

DANGER
Introduction
A magistrate has been vested with wide powers under Section 144 of the Code of Criminal Procedure, 1973. It grants certain powers to a magistrate
which entails passing an order in cases of nuisance or apprehended danger in society. In order to maintain public peace and public tranquility, preventive
measures can be taken. Any order passed by the magistrate should be in writing and consist of facts of the case.

Meaning of nuisance

Nuisance can be classified into two parts namely

• Public Nuisance
A public nuisance is defined under Section 268 of the Indian Penal Code, 1860. A public nuisance can be defined as any act or omission which causes
common danger, injury, or inconvenience to the public at large. Offences against the public are done either by doing something that annoys the whole
community or by neglecting something required to be done for common good. An act that is committed or an illegal omission should cause injury in
common.

Illustration: Poisonous gases are released from a chemical factory which is harmful to the residents of that vicinity. Hence, will amount to a public
nuisance.
• Private Nuisance
Whereas private nuisance can be defined as an interference with the right of an individual to enjoy his property. It is an act that affects a particular
individual or a few individuals and does not affect the public at large.

3 essential grounds that are necessary for the plaintiff to prove private nuisance:
• The plaintiff has a possessory interest in the land.
• The defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property.
• Defendant interference was substantial and unreasonable.
Illustration: X planted a tree in his house, but its roots and branches extend to the house of Y. Hence, it amounts to a private nuisance.
Remedies of Public Nuisance

1. Civil Law
Civil remedies of public nuisance are mentioned in Section 91 of Civil Procedure Code, 1908.
It states that any wrongful act of a person is affecting the public can be stopped:
• By taking an injunction against its continuance or any other remedy as the court deems fit according to the case.
• A suit can be filed against such an act either by the attorney in general or two or more persons from the permission of a court

2. Criminal Law
Under Criminal law there are three remedies given:

Under Section 133 and 144 (Chapter X) of the CrPC

It contains a long list of sections in regard to public nuisance. But Section 133 is the most important one; it provides conditional orders as a remedy for
public nuisance. This section empowers a District Magistrate or Sub- Divisional Magistrate or any other Executive Magistrate to pass a conditional
order, on receiving a report from a police officer after considering the evidence.
• The prosecution will be conducted under IPC (Chapter XIV)
Any person who commits public nuisance which affects the public health, safety and convenience will be liable under Section
290 of IPC which prescribes a fine of two hundred rupees in cases of public nuisance. Section 291 of IPC provides for simple
imprisonment up to a term of six months or fine or both.

The provisions dealing with Urgent Cases of Nuisance or Apprehended Danger mentioned under Section 144 of Criminal Procedure
Code is seemingly the most popular segment of the Criminal Procedure Code. It gives powers to a magistrate to take immediate
action for prevention of any of the circumstances mentioned under Section 133 of the Criminal Procedure Code. A judge may direct
any individual to abstain from doing a certain act. A person can obtain an order with respect to a certain property in his possession
or under his management, if such Magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction,
annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public
tranquility, or a riot, or an affray.
The prohibitory request made by a magistrate under Section 144 Criminal Procedure Code can stay in actuality for two months, or for six months if
so coordinated by the state government. Section 144 of Criminal Procedure Code gives powers to the Executive Magistrates to impose prohibitory
orders. This section acts as an effective tool to prevent an outbreak of violence. There are situations under which this section is applicable:

1. Annoyance
Under Section 144 annoyance can be of two types: Physical Annoyance or a mental annoyance. In case of physical annoyance, there should be
proximity between the objects whereas in case of mental annoyance no question of closeness arises. If there is an order passed by the magistrate,
under Section 144 dealing with nuisance, even then, it should include injury, danger or breach of peace. Section 144 does not cover defamatory
statements or abusive articles until and unless it leads to a breach of peace or health.

Illustration: 2 policemen were obstructed in the performance of their duties and were beaten by the people at liquor shops when they were trying to
close the liquor shops on the order of the DM (District Magistrate) so the police imposed Section 144 in the area.
2. Injury to Human Life
Section 144 confers power on a magistrate while passing an order. He makes sure that it should prevent the risk of injury to human life or safety. He
doesn’t have any power to make an order for the protection of property. A magistrate should satisfy that, if the act is not prevented now than in the
future it will turn out to be an offence.

Illustration: Section 144 is applied in states to ensure social distancing. If people do come in contact with each other, it will result in the spread of
coronavirus which causes danger to human life.

3. Disturbance of Public Tranquility

The act which is prohibited under this section is the act which is likely to disturb public tranquility.

Illustration: Section 144 was applied in east Delhi after tensions arose between two communities which resulted in riots and could have possibly
disturbed the public tranquility.
Powers of magistrates in urgent cases of nuisance
Section 144 envisages the powers of a magistrate in urgent cases of nuisance. These powers provide directions in dealing with situations that cause danger to
human life, disturb public tranquillity, result in riots or affray. These situations have the potential to create unrest or danger to public peace and tranquillity in
any area, due to any disputes.

In the case of Radhe Das v. Jairam Mahto, there was a dispute over a property in which Magistrates passed the order and restricted the defendant from
entering the property. Petitioners applied for the restriction of defendants. Defendants also applied for the claim and to restrict the petitioner from entering
into it. It was subsequently granted by the Magistrate. The defendants claim that this order is violating their right over the property. The court held that the
action should be taken to prevent public peace and tranquillity and the individual rights of a person must be given away for the greater benefit.

A magistrate can start the proceedings if there is an immediate or speedy remedy is desirable in the following situations mentioned under this clause:
1. Danger to human life;
2. Disturbance to public tranquillity;
3. Riot; or
4. Affray.
Orders passed by Magistrate have an expiry date under Section 144 (4)

• Such orders expire within 2 months from the date the order has been made or issued.
• But in the exceptional cases if the State Government considers it necessary by notifications, it can direct that an order made by the magistrate
which is to be enforced for 2 months will continue for a period, not exceeding 6 months.

Alteration can be made under Section 144(5)

Any alteration can be made in the order under this section. It can be made by the magistrate himself, or by a magistrate subordinate to him or by a
predecessor in his office. Such alteration will be made either on an application by the aggrieved person or even the magistrate himself can do so.

A Procedure needs to be followed by the Magistrate, when section 144 is imposed:

Against whom the order has been passed under Section 144(7)
The aggrieved person against whom the order has been passed if he approaches the court under sub-section(5), he will be given the earliest
opportunity of hearing. On the other hand, if his application has been rejected wholly or in part either by the State Government or by the
Magistrate, the reasons are to be given the reason in writing. Sub-section 7 provides that the proceedings should be judicial in nature and
evidence would be recorded in an open court before the alteration or a rescinding order is passed.
Certain restrictions can be imposed by a magistrate:

Section 144 of CrPC restricts the assembly of five or more people in a public place with a common object. As per the code, each person of that
‘unlawful assembly’ will be booked under Section 143 of IPC. Unlawful Assembly is defined under Section 141 of the Indian Penal code. An
assembly of five or more persons with a common illegal object is said to be an unlawful assembly. And if the common object of those 5 people
composing that assembly is any of the five objects declared illegal under Section 141 of IPC:
1. To overawe Government by criminal force;
2. To resist the execution of a law or legal process;
3. To compel any person to do illegal acts;
4. To commit an offence; or
5. Forcible possession or disposition of property.
It restricts the handling of any kind of weapon in the area where Section 144 is imposed. A magistrate can pass an order or by a public notice,
declare restrictions in carrying of arms in procession, or holding of, or taking in any mass drill or mass training with arms in a public place. If he
has a reason to believe that it is necessary for:
1. Public safety;
2. Preservation of public peace; or
3. Maintenance of public order.

It prohibits carrying dangerous weapons, including lathis, sharp-edged metallic objects which covers a knife used in a kitchen. If any person
violates the and is still engaged in the activity, then he can be detained. Whereas this section doesn’t restrict police officials to carry guns. Police
and other security personnel are the only ones who are allowed to carry weapons in the area where Section 144 is imposed.

As per the Section 69A of the Information Technology Act, the government has the right to shutdown the internet. Section 144 IPC gives power to
a magistrate to stop internet access in a region
In the case of Gaurav Sureshbhai Vyas v. State of Gujarat, the petitioner had challenged shutting down of the internet in parts of Gujarat. He argued that the
government should invoke Section 69A of the Information Technology Act that allows the government to block certain sites for the sovereignty and
integrity of India. And the internet should not be blocked by the government as a whole in the state.

The court held that the government had not completely blocked the internet. People had access to it through broadband or Wi-Fi. It was held that the
Section 69A of IT Act was meant to block certain sites, but under Section 144 of CrPC, the government can issue directions to a person responsible for
extending the internet access. The court held that in case of law and order situation, the government can ban internet access to bring the situation under
control.

Landmark Judgments

Ramlila Incident v. Home Secretary, Union of India

The Supreme court had criticized the decision of the Centre for the imposition of Section 144 in Ramlila maidan against the sleeping crowd. The Hon’ble
court held that such provision which is imposed by the Centre can only be used in grave situations, for maintaining public order.
Babulal v. state of Maharashtra

The Hon’ble Supreme Court held that a magistrate can exercise the power conferred upon him where there is an apprehension of danger. But he
needs to satisfy that the precautions undertook by him were essential to protect public safety.

As per the four-fold test in section 144, it is not about likelihood or tendency. The Magistrate should be satisfied with certain immediate measures
that should be taken to prevent the danger, and protect public safety. Powers vested upon him can not only be exercised in the presence of danger
but can also be exercised in cases where there is an apprehension of danger. So, preventive measures taken by a magistrate are justified.

Conclusion
To prevent the breach of the peace or public tranquillity, a magistrate should take preventive measures and speedy remedy should be given to
maintain peace in the society. If there is an apprehension to danger or nuisance the immediate remedy is desirable under such circumstances.
Second of all, a magistrate should consider that the directions given by him are effective and they prevent annoyance, injury to human life, and
disturbance of public tranquillity. Section 144 turns out to be an effective tool during emergencies; it is mainly imposed by the administration to
prevent riots and violence.