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    Friday, 24 February 2017

    Public nuisance and How it is removed


    Prevention of the public peace and tranquility is the primary function of the government.  Criminal law protects the whole society by providing measure to person and property. Section 144 of criminal proceeding code provides for the issue of temporary orders in urgent cases of nuisance or apprehended danger. It confers power on certain magistrate to take prompt action in cases of emergency. An order under section 144 can be made only to prevent danger to life, health, safety peace or tranquility of members of the public.

    Relevant provision of law
    Section 144 of criminal proceeding code deal with public nuisance

    This is derived from french word, ‘’nuire’’ or ‘nuis’ which means to annoy, to disturb or to do hurt.

    Generally it is an act affecting the public at large with regard to health safety and comfort or such rights enjoyed by members of society.

    Essential of public nuisance

    Following are the essential of public nuisance
    a) Unlawful interference at public at large
    b) Violation of right or enjoyment
    c) Damage or loss.

    When any magistrate authorized by law consider that there are sufficient grounds for proceeding remedy is desirable then he will issue order,  ex parte order is issued in extremely emergency cases.

    Who shall make order?
    Under section 144 an order can be passed by a district Magistrate or the sub divisional magistrate or executive magistrate specially empowered by the government.

    Condition precedent
    The circumstances calling for an order must be circumstances of emergency, and an order passed when there is no emergency is without jurisdiction or void.

    Nature of order
    The order under section 144 is prohibitory and preventive. It is a judicial order but  must be remembered that this order is preventive not a sentence

    Content of order
    Following are the contents of an order,

    i) Order must in writing and signed
    The order must be in written form and signed by the magistrate. If there is no written a prosecution under section 188 PPC for the disobedience of mere verbal order cannot stand. Section 144 of the code provide ‘’ the magistrate by a written order stating material fact of the case”

    Unless the order is signed by the  magistrate who purport to promulgate the same, it cannot be treated as an order under this section.

    ii) Order must be specific and definite
    Order must be specific, definite , and clear to enable the public or persons affected by it to know exactly what it is which they are prohibiting from during.

    iii) Statement of material facts
    The magistrate must state the material facts in the order. If the order does not state the material facts it will be set aside.

    iv) Order to be co-extensive with emergency

    A magistrate can not issue the order for all the time. He can only issue order in emergency cases, because order under this section is co-extensive with emergency.

    Mode of promulgation of order
    Where the order is prohibitory in natures, it should be addressed to an individual and be served on him in the prescribed manner, where the prohibitory order is intended to prohibit the public in general, it may be appropriately be brought to the notice of the public through suitable proclamation.

    Discretion of magistrate
    The power conferred by this section is discretionary and being large and extra ordinary, it should be used carefully, and only where all the conditions prescribed are strictly fulfilled. The magistrate must not delegate to another his discretion in this respect.

    Ex part order under subsection 2 of section 144 CrPC
    Subsection 2 of section 144 makes it clear that order are to be passed with prior notice to party who may be affected by such orders except in emergency or in circumstances of not admitting of service of notice in due time. In the said circumstances such orders can be passed ex parte, while passing ex parte order the magistrate must record his reasons for considering and the materials on which he considered immediate action necessary

    The order under section 144 shall not remain if force for more than tow months. It should not be irrevocable in nature must be such that it can be recalled at the expiry of two months.

    Rescission or alteration of order
    Under subsection 4 order can be rescind and altered on cause being shown. Magistrate is empowered to rescind or alter the original order.

    Punishment under section 188 PPC
    When a person disobey order and tends to cause obstruction. Annoyance or injury, pe punished with simple imprisonment of one month or with fine which may extend to tow hundred rupees or with both.

    If such disobedience causes danger to human life, health or safety or tend to cause a riot or affray, shall be punished with imprisonment for a term which may extend to six months or with fine which may extend to five hundred rupees or with both.

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    Item Reviewed: Public nuisance and How it is removed Rating: 5 Reviewed By: Usman Ali
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