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Vayalele Veettil Balakrishna Nambiar Vs. R. Madhavan Nambiar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1986CriLJ109
AppellantVayalele Veettil Balakrishna Nambiar
RespondentR. Madhavan Nambiar
Cases ReferredState v. Kochu
Excerpt:
- - 2. a tree standing close to the building is alleged to be in such a condition as to attract the provisions of section 133(1)(d) of the code of criminal procedure, hereinafter referred to as 'the code'.on the basis of an information received, by a petition filed by the respondent, the sub-divisional magistrate called for reports from the police as well as the concerned revenue authorities. i am not satisfied that either of the contentions will stand. the requirement is satisfied even if the danger is confined to the members of a single household, even, to a sole occupant......with public order or tranquillity. so also it is true that section 133 comes under the heading public nuisances. but they are not decisive factors in determining the scope and ambit of the provisions of section 133 of the code.5. public nuisance has been defined in section 268 of indian penal code, which reads:268. public nuisance - a person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.a common nuisance is not excused on the ground that it causes some convenience or advantage.if.....
Judgment:
ORDER

S. Padmanabhan, J.

1. The petitioner and his sister Madhavi Amma (grandmother of the respondent) are residing in house No.C.P.3/48 in Cherukunnu Panchayat. Respondent is residing at Cannanore and he is not having any right over the above building. There is some existing dispute between the petitioner and Madhavi Amrria regarding title and possession over the abovesaid building and the land. In that connection some civil suit is also pending.

2. A tree standing close to the building is alleged to be in such a condition as to attract the provisions of Section 133(1)(d) of the Code of Criminal Procedure, hereinafter referred to as 'the Code'. On the basis of an information received, by a petition filed by the respondent, the Sub-Divisional Magistrate called for reports from the Police as well as the concerned revenue authorities. On getting satisfaction that the conditions contemplated under Section 133(1)(d) exist, the Sub-Divisional Magistrate passed a conditional order and issued notice to the petitioner. The petitioner objected. He raised some preliminary objections. That was negatived by the Sub-Divisional Magistrate by order dated 17-9-1983, It was ordered:

Hence this Court will continue with proceedings in this case at this stage. The case is posted to 1-10-1983 for summary evidence of the counter petitioner if any, against the cutting and removal of tree.

Thus the matter is only at the stage of conditional order. Aggrieved by this order, the petitioner filed Crl. R.P. 129 of 1983 before the Sessions Judge, Tellicherry and by order dated 22-1-1985 the revision was dismissed. It was under the above circumstances that this petition invoking the inherent jurisdiction of this Court was filed.

3. The petitioner mainly alleged two grounds:

(1) the respondent has no locus standi to move the Sub-Divisional Magistrate since he is not an occupant of the building, passerby, neighbour or otherwise, who is likely to be affected by the fall of the tree and (2) no public right is involved and it is only a matter affecting the petitioner and he is having the right to decide whether he is to put up with the danger or not.

4. I have heard both sides in detail on the above two points. I am not satisfied that either of the contentions will stand. It is true that Section 133 of the Code appears in Chapter X which deals with Public Order or Tranquillity. So also it is true that Section 133 comes under the heading public nuisances. But they are not decisive factors in determining the scope and ambit of the provisions of Section 133 of the Code.

5. Public nuisance has been defined in Section 268 of Indian Penal Code, which reads:

268. Public nuisance - A person is guilty of a public nuisance, who does any act or is guilty of an illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

A common nuisance is not excused on the ground that it causes some convenience or advantage.

If we go by that definition, in order to constitute public nuisance there must be common injury, danger or annoyance to the public or to people in general, who dwell or occupy property in the vicinity and it is not sufficient that there is danger to a particular person or persons living in the neighbourhood. Public nuisance has not been defined in the Code. But in view of the provisions of Section 133 of the Code, it is not necessary for us to go into the definition of public nuisance contained in Section 268 of the Indian Penal Code, because Section 133 itself makes it clear as to what is meant by public nuisance for the purpose of that section. Section 133 shows that the term public nuisance is used to cover several kinds of nuisances enumerated therein. Even if the definition contained in Section 268 of the Indian Penal Code is taken as relevant, for the purpose of interpretation with regard to general definitions, the general definition will have to yield if a different intention appears from the subject or conduct of the provision which is applicable. Such a different intention is clear from Section 133 of the Code and therefore that intention will have to prevail in preference to the general definition contained in Section 268 of the Indian Penal Code.

6. Under Section 133 of the Code, no danger to the general public is necessary. For the purpose of Section 133(1)(d) it is enough if the building, tree or structure 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. It is not necessary that the dangerous position of the tree is such that it is likely to fall in a public place. Likely danger to the public or the entire residence of the neighbourhood is also not absolutely essential. Even possible danger to a single individual may become sufficient in specified cases.

7. An identical question came up for consideration in State v. Chacko 1961 Ker LT 190 : 1962 (2) Cri LJ 6(36). It was held therein:

It is clear from the language of Section 133(1) that no danger to the general public is necessary, that the tree in question need not be in such a position as to fall in any public place, and that it is quite enough that it is likely to fall, wheresoever the fall might be, so long as the fall is capable of causing injury to persons living or carrying on business in the neighbourhood. The requirement is satisfied even if the danger is confined to the members of a single household, even, to a sole occupant. That being so, there is no need to go to the heading of the chapter to ascertain or limit the meaning of the clause when the language of the clause itself is so clear. And from the subject and context of Chapter X of the Code, it is clear that the term public nuisance is used therein to cover the several kinds of nuisance described in Section 133, in other words that a tree which is likely to fall (albeit on private property), and thereby cause injury to persons living and carrying on business in the neighbourhood, is a public nuisance.

8. Even in such cases, the possible dangerous condition mentioned in Section 133(1)(d) is treated as a public nuisance even though it may not strictly come within the definition contained in Section 268 of the Indian Penal Code. Even in such contingencies, Section 133 of the Code makes it the duty of the Magistrate to avert such danger as if it is a public nuisance. For that purpose he can act on any information for the purpose of getting satisfaction. Locus standi of the informant or the possible injury or damage to him are not relevant considerations. The contention of the respondent that he is interested in the sense that he has to go to the building to see his grandmother or that he is interested in the safety of the grandmother need not be considered. Even otherwise as a citizen, he is entitled to bring the matter to the notice of the concerned authority. What is relevant is only the satisfaction of the authority regarding the existence of circumstances enumerated in Section 133(1)(d). The source of information or the competency or the interest of the informant are matters which are irrelevant. Therefore there is no basis for the contention that the action of the Sub Divisional Magistrate in having relied on the petition filed by the respondent is illegal. On getting satisfaction of the existence of the conditions, it is the duty of the Sub-Divisional Magistrate to avert danger treating it as a public nuisance. In this connection, it may be advantageous to extract the dictum laid down in State v. Kochu, 1959 Ker LT 929 wherein it was held:

The position of the tree as found by the Magistrate, was such that it could fall down on the neighbouring building resulting in serious threat to the lives of the inmates of the house. To avert such a possible danger is the duty of the Magistrate. The danger is really a public nuisance and cannot be characterised as a danger to any particular individual only.

If so, the question of competency of the respondent cannot at all arise. Equally untenable is the petitioner's contention that he alone is the person interested in the matter and that he is having the full authority to decide whether the danger has to be allowed to subsist or whether it has to be removed. According to the respondent, even if the tree is likely to fall down immediately and cause damage to the building or his own life, he is having the freedom to put up with that risk. His version is that even though he may be liable for an action for an attempt to commit suicide, an action under Section 133(1)(d) cannot lie. I do not understand the basis of this contention. What Section 133 provides is that in such cases it has to be treated as a public nuisance and it is the duty of the Sub-Divisional Magistrate to treat it as such and avoid the same. There is no point in saying that the authority to decide whether it is a nuisance or not is the petitioner and nobody else. Therefore that contention is also without any merit.

9. The Sub-Divisional Magistrate has considered all the legal and factual positions of the matter correctly. In revision, the Sessions Judge has also gone into the matter in detail. Section 482 of the Code is not intended to be invoked in such cases. Here, there is absolutely no question of preventing any abuse of process or otherwise securing the ends of justice. What the Sub-Divisional Magistrate has done is in accordance with law. The statutory revisional authority had occasion to consider the correctness of the same. There is no scope for invoking the provisions of Section 482 of the Code. It appears that the motive behind the filing of this petition is only the prestige on account of the strained relationship between the parties. There is no merit in this petition and it is hereby dismissed.


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