Sec. 133: Removal of Nuisance

1. Sec. 133: Removal of Nuisance On receiving report of a Police officer or other information (taking evidence) • If immediate steps are not taken irreparable injury will be done. • To act in the interest of public. • Not a Private Dispute. • Conditional Order to be passed. • Final Order u/s. 411.

2. Sec. 135: Person against whom order u/s. 133 is made shall:a) perform within the time and in the manner specified,b) appear and show cause.Sec. 136: If the person does not act or appear and show cause he shall be liable to penalty prescribed in S.188 IPC.Sec. 137: (1) Enquiry if the person denies, (2) If reliable evidence is found in support of denial, the Magistrate shall stay the proceedings until a Civil Court decides.

3. Sec. 138: (1) When the person appears and shows cause, evidence shall be taken. (2) If the Magistrate is satisfied that the order passed is reasonable and proper, the Order shall be made absolute with or without modification. (3) If Magistrate is not satisfied, further proceedings shall take place.

4. Sec. 139: Magistrate may direct….Sec. 141: (1) Notice to the person to obey the order within specified time [prior to passing order u/s. 136], (2) Attachment and sale when not obeyed.Sec. 143: Order not to repeat or continue public nuisance.

5. Urgent Cases of Nuisance (S. 144) • (1) Magistrate may direct a person to abstain from certain act or to take certain order for prevention of disturbance of public tranquility, • (2) Order may be passed ex parte in case of emergency, • (4) Order shall not remain in force for more than 2 months, • (7) To appear and show cause, • Order is revisable by High Court/ Sessions Court u/s. 397 CrPC.

6. Elements in the Order u/s. 144 CrPC. • Material facts. • Factors necessary for action u/s. 144 CrPC. • Grounds of satisfaction that its emergency. • Thing which is prohibited. • Persons who are prohibited. • Place covered. • Period of time covered.

7. Dispute over Possession & Apprehension of Breach of Peace (s.145) • (1) To require the parties to attend, • (4) To hear parties and take evidence, • (6) Order, • (7) When any party to dispute dies, Magistrate may cause legal representative party to proceedings, • (9) Summon any witness on application of other party.

8. More on S. 145 • There must be a dispute and Magistrate is satisfied that there is likelihood of breach of peace. • In spite of being a decree by Civil Court in favour of a party, the Magistrate has jurisdiction to decide who among the parties is at the time of proceeding in actual possession and to maintain his possession though wrongfully. • Magistrate’s duty is to declare and maintain the possession of the party who is found on enquiry to be in ‘Actual Possession’.

9. Preliminary Order u/s 145 CrPC • Indicate the basis on which order is being drawn. Describe subject of dispute. • Mention content of Police report or other information. • State the ground on which you are satisfied that the dispute is likely to cause breach of peace. • Ask parties to attend in person or by pleader on specified date and time to give written statement. • Affix your signature and date.

10. Attachment & Appointment of Receiver(S. 146) • (1) If after making order u/s. 145(1) it is found that none of the parties was then in possession of the subject of dispute, Magistrate may attach the subject until a competent Court has determined the rights of parties, Provided that such Magistrate may withdraw the attachment at any time. • (2) To appoint Receiver if no Receiver is appointed by Civil Court, Provided : when Receiver is subsequently appointed by Civil Court, Magistrate -------- • a) to make order to hand over possession, • b) to make incidental or consequential order,

11. Sec. 146 contd……. • In case of emergency, attachment can be ordered at once ‘without going into merits of the claims of the parties regarding possession. Opportunity of being heard and prior notice to parties are not prerequisite for valid attachment in case of emergency.’ [Ganpat Sing & others V State & another, 1995, Cr LJ Rajasthan (HC)]

12. Dispute over Land & Water (S.147) Dispute concerning right of use of land or water: • If breach of peace exists, Magistrate shall order to require the parties to attend and put in written statements, • To examine statements and hear parties, • When right exists, Magistrate may order prohibiting interference/ removal of obstruction in exercise of right. Proceedings commenced u/s 145 can be transferred to s. 147 and vice versa.

13. Enquiry/ Investigation • S. 148 (1): In the proceedings u/s. 145, 146 or 147, subordinate magistrate may hold enquiry if necessary. • (2) Enquiry report will be part of evidence. • (3) Cost of enquiry to be paid or shared. • S. 163: In absence of Judicial Magistrate, Officer-in-charge of Police station may forward the accused along with case records to the Executive Magistrate, who may, for reasons to be recorded, authorise detention of the accused in such custody as he may think fit for a term not exceeding 7 days in aggregate, and transmit to nearest Judicial Magistrate before expiry of period of such custody.

14. Sec. 196 (1) No Court shall take cognizance of:(a) Offence punishable u/s. 153A, 153B, 295A, 505(1) IPC.(b) Criminal conspiracy to commit such offence.(c) Any such abetment described in S. 108A IPCExcept previous sanction of Central/State Govt. Sec. 196(1A): No Court shall take cognizance of: Any offence punishable u/s 153B, 505(2) or 505(3) IPC. Criminal Conspiracy to commit such offence. Except previous sanction of Central/State Govt. or DM.

15. S. 174 (1) Unnatural death to be reported to nearest EM. EM, under order of DM/SDM to cause investigation and draw up reports in presence of 2 or more respectable persons. Report to be signed by Police officers and others. S. 176(4) When the enquiry is held the Magistrate to inform relatives to remain present. Statement of witness u/s. 162. Magistrate holding Inquest u/s. 176 may record confession, even not empowered. Inquest

16. Essential Contents of Inquest Report u/s. 176 CrPC • Date, time & place of receiving intimation. • Substance of information. • Place where body was found. • Place, date and time of Inquest. • Who identified deadbody, Marks of identification. • Name, parentage, sex, age, caste and residence of deceased. • Names and other particulars of relatives present. • Names and other particulars of respectable persons present.

17. Essential Contents of Inquest Report u/s. 176 CrPC • Observe closely all parts of body under sun light and describe Corpse. • Note down all relevant features including position and attitude of body; number, position, length, breath and direction of wounds; nature of wounds as visible on external examination like incised, lacerated, bruises and fractures; presence of blood, saliva, froth, semen, swab etc; condition of clothes/ornaments; position of limbs, eyes and mouth, and so on.

18. Essential Contents of Inquest Report u/s. 176 CrPC • Is the body well nourished and vigorous or emancipated and weak? • Note down if there are marks of violence or struggle; articles like rope, weapon, chemicals; suicide note etc. • Is there anything to suggest that deceased killed herself? • Do you notice anything around to suspect foul play?

19. Essential Contents of Inquest Report u/s. 176 CrPC • Number & name of witnesses examined and substance & weight of their evidence, • Opinion of Magistrate on cause of death as could be ascertained based on his inspection of the scene, close examination of deadbody and evidence adduced.(use separate sheets for recording of evidence) • Sketch plan of the place or photo if taken, • Action proposed to be taken.