S.133 CrPC | Proceedings For Removal Of Nuisance Cannot Be Initiated Unless Public At Large Is Affected: Patna High Court

Recently, the Patna High Court set aside the conditional order issued by the Sub-Divisional Magistrate (SDM) under Section 133 of Cr. P.C. to remove the obstruction/encroachment from the land in question.

The Court said that since the public at large was not affected by the obstruction, no proceedings can be initiated under Section 133 Cr. P.C. for the removal of the encroachment causing public nuisance.

The bench comprising Justice Jitendra Kumar observed that for invoking powers under Section 133 of Cr. P.C. the SDM needs to enquire whether the obstruction was causing inconvenience and discomfort to the public at large.

“As such, it emerges that the condition precedent for invoking jurisdiction under Section 133 Cr.P.C by an Executive Magistrate is the existence of public nuisance or obstruction causing inconvenience and discomfort to the public at large. But Section 133 Cr.P.C is no way meant to adjudicate the civil dispute between the parties. Adjudication of Civil disputes come within the exclusive jurisdiction of Civil Court.”

In this case, a complaint was lodged with the Police against the Petitioner alleging that the tenant of the Petitioner is running a khatal over the land, and in the middle of the land, there is an accumulation of animal dung due to which the complainant was not able to access the metalled road.

It was stated by the Petitioner that the complainant was provided the way to the metaled road from the eastern side of the plot and there was no obstruction. Moreover, he argued that the proceedings under Section 133 CrPC would not be maintainable against him as there was no public nuisance that affected the public at large but a civil dispute of a private nature.

“Only grievance of the Complainant/O.P. No.5 is that he is not allowed to access the metalled road through the land of the Petitioners. He wants approach pathway from his land to the metalled road through the land of the Petitioners claiming easementary right over it. But he has no complaint that there is any nuisance from the accumulation of bricks or animal dung or running of khatal over the land in question of the Petitioners. Even regarding such pathway, there is no public demand. It is only the Complainant/O.P. No.5 who wants this path way.”, the Court said.

“Hence, the impugned notice and the order and the whole proceeding pending before learned Executive Magistrate is not sustainable in the eye of law and liable to be quashed and set aside under Section 482 Cr.PC to prevent the abuse of the process of Court and meet the ends of justice.”, the court concluded.

Appearance :

For the Petitioner/s : Mr. Choudhary Shyam Nandan, Advocate

For the State : Mr. Upendra Kumar, APP

For Private Respondent : Mr. Suman Kumar Jha, Advocate

Case Title: Smt. Shakuntala Devi & Ors. Versus The State Of Bihar & Ors., CRIMINAL MISCELLANEOUS No.32558 of 2016

Citation: 2024 LiveLaw (Pat) 68

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