Offences which affect the public health, convenience, morals, decency and safety are dealt with in Chapter XIV of IPC. Such nuisance can be categorised into two types:
- Private nuisance
- Public nuisance
A public nuisance is a public wrong and is an act of causing annoyance to all citizens or which affects the public. On the other hand, a private nuisance is an act of causing disturbance or annoyance to an individual or individuals, distinct from public.
Interfering with the comfort of another or with their hereditaments, lands or tenements will account for a private nuisance. And these actions cannot be challenged with a public prosecution as it only interferes with a private entity. However, when such interference caused to a private individual is detrimental to the public, and then an offence under Chapter XVI emerges.
This chapter intends to encompass three classes of persons for protection:
- Public at large
- Persons having public right
Public Nuisance: Section 268.
“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 is causing some convenience or advantage”
An act which tends to annoy the community in general or disregarding anything which is required for the common good is a public nuisance. The principle on which public nuisance is premised is a maxim of civil law i.e. sic utere tuo ut rem oublicum non laedas, which connotes “enjoy your property in such a way as not to injure the rights of the public”.
Section 12, IPC has defined ‘public’ as any class of the community or in general public. A community or a class staying in a particular locality can be covered within the ambit of ‘public’.
Further, the terms ‘illegal omission’ must be interpreted likewise to the meanings of ‘acts’, ‘act’ and ‘illegal’ provided in Sections 32, 33 and 43 in IPC respectively. An omission will amount to an offence of a public nuisance only when the omission is illegal.
The accused cannot take a defence that the nuisance caused by him protected his own interest or to mitigate or prevent any harm to the accused’s property or crops. Section 81 provides an exception to absolve a person from criminal liability if the act is done in good faith or to intercept any other harm. However, an accused undercharged with Section 268 cannot avail himself the exception under Section 81, IPC.
An important ingredient to establish conviction under this Section is the existence of an annoyance, danger or an injury to the public or who may have the occasion to use public right. For example – using a navigable river or highway.
If a trade is interfering with the comfort or peace of the neighbouring vicinity or turns into a health hazard, it becomes a public nuisance. The facts and circumstances of such a nuisance are dependent on whether it satisfies all the ingredients required for constituting an offence under this Section.
In the case of Ram Autar v. State of Uttar Pradesh, auctioning of vegetables was being carried out by the appellants. The auction used to block the roads which interfered with the physical comfort of the community residing in the vicinity. The Apex court held that since the appellants were carrying out the auctioning business inside their private house and the crowding on the road was concomitant to it due to the people participating in the auction, hence they cannot be convicted for the charges of public nuisance.
The court was of the view that trades of such nature may cause some noise leading to discomfort to some community. Nevertheless, such discomfort has to be borne by those communities staying such part of the town where such trades are commonly carried out.
In Re Muttumira, where an image was put during Moharram in a village near a Hindu temple, Apex court ruled out the constitution of an offence of a public nuisance because:
“It was obvious from the language of the Act that it was not intended to apply to acts and omissions calculated to offend the sentiments of a class. In this country, it must often happen that acts are done by the followers of a creed which must be offensive to the sentiments of those who follow other creeds.
The erection of a place of worship in a particular spot is likely to offend the sentiments of the adherents of other creeds residing in the neighbourhood, but the Penal Code does not regard such an act as a public nuisance. The scope of the provision we are considering is to protect the public or the people in the neighbourhood of places where they dwell or occupy the property, or when they have occasion to use a public right.”
In another case, K Ramakrishnan v. State of Kerala, the act of smoking in public is a public nuisance under Section 268 causing the non-smokers passively smoke. High Court of Kerala was requested to declare the act of smoking in public as “public nuisance” and also unconstitutional. The High court observed that the act of smoking beedis, cigars, cigarettes or tobacco is inculpatory under Section 268, IPC and unconstitutional as it violated the right to life promised under Article 21 of the Indian Constitution.
DISEASES DANGEROUS TO LIFE
Section 269. A negligent act is likely to spread infection of disease dangerous to life AND Section 270. Malignant act likely to spread infection of disease dangerous to life
Section 269 and 270 primarily aim at convicting persons who knowingly or even after having reasons to believe that their acts might lead to spreading of an infection or disease which is threatening to life commit such acts. However, 270 deals with an aggravated form of offence dealt with under Section 269. The term ‘malignantly’ used in the section connotes to the mens rea of the accused who was actuated by malice while deliberately spreading the infection. Hence, more severe punishment is prescribed by Section 270 than under Section 269.
A landmark case in this regard is Mr X v. Hospital Z, several found out that the blood sample of Mr X was HIV+, leading to his marriage being cancelled after the hospital authorities disclosed his reports to his fiancé. After such an event Mr X was severely ostracised by the community. Consequently, Mr X held the hospital authorities liable for breaching his right to privacy and claimed to be compensated for the same.
The Apex court dismissed the appellant’s contentions by observing the acts done by the authorities not unconstitutional because if they had not disclosed the fact that Mr X was HIV+ then his fiancé would have consummated and gotten infected by the disease.
The court further laid down that under Article 21 it is everyone’s right to lead a healthy life, so if a person suffering from HIV Aids deliberately marries a woman thereby transmitting the infection to her, and would be convicted under Section 269 and 270. Additionally, if the fiancé is aware of such a disease which her partner has contracted and is still willing to marry him, the person suffering from the disease will not be guilty of any offence under Section 269 and 270.
Disobedience to quarantine rule: Section 271.
“Whoever knowingly disobeys any rule made and promulgated by the government for putting any vessel into a state of quarantine, or for regulating the intercourse of vessels in a state of quarantine with the shore or with other vessels, or for regulating the intercourse between places where an infectious disease prevails and other places, shall be punished with imprisonment of either prescription for a term which may extend to six months, or with fine, or with both.”
NOXIOUS FOOD OR DRINK
Adulteration of food or drink intended for sale AND Section 273. Sale of noxious food or drink: Section 272.
The prosecution is required to prove certain ingredients provided hereunder:
- Article in question was food or drink meant to be consumed by live persons
- Adulteration was done by the accused
- The article subsequently became noxious due to such adulteration
- At the time of adulterated the article with an intention to sell such article as drink or food, knowing that such article would be sold by someone else as drink or food.
Merely an act of adulteration is not an offence under Section 273 and the adulteration must be to an extent to have rendered the article noxious. This Section mainly prohibits the sale of such noxious articles as food or drink and not mere sale of noxious article.
The terms “noxious as food” refers to the detrimental nature of the food or its injuriousness to health. Thus, mixing pig’s fat to ghee and subsequently selling it as an article would not make it article “noxious as food”, even though it could noxious to religious sentiments of a class of the public. The court of the view that:
“Mixing water with milk is no offence under this section because the mixture is not noxious or injurious as food or drink. Similarly, the selling of wheat containing a large admixture of extraneous matter, such as dirt, wood, charcoal was held to constitute no offence. But if found that it is mixed with rodents hair and their excreta, and plenty of foreign starch, it would obviously be ‘noxious as food’. Article of food or drink, intended to be sold, may become noxious by the lapse of time or by not taking proper precaution or not adding preservatives.”
OFFENCES RELATED TO DRUGS
Section 274. Adulteration of drugs AND Section 275. Sale of adulterated drugs
Both these sections come into application if subsequent to the adulteration, the efficiency of the drugs reduces or its effects are altered or turn noxious. Section 275 convicts any person selling such drug.
Section 276. Sale of drug as a different drug or preparation
“Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary for medicinal purposes, any drug or medical preparation, as a different drug or medical preparation, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
OFFENCES REGARDING NATURAL RESOURCES
Section 277. Fouling water of public spring or reservoirs
If a person voluntarily contaminates water whose source is public spring or reservoir belonging to every member of the community and if such act renders it less fit to be utilised for the purpose for which it is generally used then he may be charged under Section 277 of IPC. The terms ‘corrupts or fouls’ connotes to the act of physically defiling or deteriorating the condition of the water from any public spring. Therefore, bathing in a private tank will constitute an offence under Section
Section 278. Making atmosphere noxious to health
Smoking in public places was held to be unconstitutional under Article 21 and Section 278 of IPC as it makes the atmosphere injurious for the health of the non-smokers who are present in the proximity. This was held by the High court if Kerala in the case of K Ramakrishnan v. State of Kerala.
Section 279. Rash driving or driving on a public way
A negligent act is constituted of an overhasty act done irrespective of the existence of intention without taking into account due to caution and in cases of negligent behaviour the accused never anticipates of the impending offence which follows due to his negligent act. Therefore, in such cases, he is punished for the manner in which the entire event underwent and not for the results which were produced.
The terms ‘rash and negligent’ might seem similar and interchangeable, yet are distinct. The case of Le Neve v. Gould a lucid distinction between the terms rash and negligence has been provided by Lord Esher MR:
“The question of liability for negligence cannot arise at all until it has been established that the man, who has been negligent, owed some duty to the person who seeks to make him liable for his negligence. A man is entitled to be a negligent as he pleases toward the whole world if he owes no duty to them. If one man is near to another or is near to the property, a duty lies upon him not to do any act which will cause a personal injury to that other or may injure his property.”
The prosecution is required to prove the following in order to establish guilt under Section 279:
- Accused was driving the vehicle on a public way
- The manner in which he was driving was rash and negligent to an extent to endanger human life or possibly injure or cause hurt to another person
The essential ingredient in such an act must be the existence of criminality in running the risk of committing such reckless indifferent act. Presence of mere carelessness or error of judgment is not sufficient.
In a case where a bus driver although driving the bus at a moderate speed, ran over a cyclist as a failure of not looking towards his right before making a turn on the crossroads was convicted for his reckless driving.
When military personnel was driving a military truck in a zigzag manner in an inebriated state causing the death of a rider and two other accidents were convicted by the High court of Karnataka in the case of State of Karnataka v. Satanam.
The judge has to apply his mind as to whether the accident could have been adverted by the accused if the same amount of diligence and care was exercised by him as is ordinarily exercised by a cautious person. Even in cases where no one was injured or hurt, a person driving rashly or negligently can be made guilty if the manner in which he was driving created a likelihood of someone getting hurt or injure or jeopardized a person’s life.
Section 280. Conveying person by water for hire in an unsafe or overloaded vessel
In the case of VR Bhate v. State of Maharashtra, a passenger vessel capsized because of the stampede tilted the vessel to one side and exerting all the weight to that side which resulted in the flow of water into the vessel. This frightened the passengers. However, the Apex court did not hold the owners of the vessel responsible for the mishap as the flow did not take place because of the overloading of passengers but due to the stampede.
OBSTRUCTION IN PUBLIC WAY
Section 283. Danger or obstruction in public way or line of navigation:
“Whoever, by doing any act, or by omitting to take order with any property in his possession or under his charge, causes danger, obstruction or injury to any person in any public way or public line of navigation, shall be punished, with fine which may extend to two hundred rupees.”
Section 284. Negligent conduct with respect to poisonous substance:
“Whoever does, with any poisonous substance, any act in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any person, or knowingly or negligently omits to take such order with any poisonous substance in his possession as is sufficient to guard against probable danger to human life from such poisonous substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
Section 285. Negligent conduct with respect to fire or combustible matter
The accused in the case of Kurban Hussein Rangawalla v. State of Maharashtra, converted his licensed factory from cold process manufacturing products to heat process by installing four burners. Once a mixture of resin, lime and turpentine began frothing and overflowing out of the barrel and the varnish and turpentine stored in the proximity caught fire. The fire spread rapidly due to the presence of combustible materials inside the premises. The result of the fire was the death of seven workers. The accused was convicted under Section 285 for his negligent act.
Section 286. Negligent conduct with respect to explosive substance
“Whoever does, with any explosive substance, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any explosive substance in his possession as is sufficient to guard against any probable danger to human life from that substance, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
Section 287. Negligent conduct with respect to machinery
”Whoever does, with any machinery, any act so rashly or negligently as to endanger human life or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any machinery in his possession or under his care as is sufficient to guard against any probable danger to human life from such machinery, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
PULLING DOWN BUILDINGS
Section 288. Negligent conduct with respect to pulling down or repairing buildings
“Whoever, in pulling down or repairing any building, knowingly or negligently omits to take such order with that building as is sufficient to guard against any probable danger to human life from the fall of that building, or of any part thereof, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
Section 289. Negligent conduct with respect to animal
“Whoever knowingly or negligently omits to take such order with any animal in his possession as is sufficient to guard against any probable danger to human life, or any probable danger of grievous hurt from such animal, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
ALL OTHER NUISANCE
Section 290. Punishment for public nuisance in cases not otherwise provided for.
When such a situation arises that a case of public nuisance is not covered under the purview of any of the offences enumerated in this chapter then the prosecution can take resort to Section 290. In the case of Sukumaran Nair v. State, the accused caused interruption during a public meeting by putting forth his questions and refusing the statements of the reported. The charges against him on the basis of Section 268 and Section 290 were denied by the Apex court. By merely posing contradictions to a speaker a person cannot be alleged to have caused any hurt or injury or created any likelihood of causing hurt or injury. Such cases would amount to trivial cases under Section 95 of IPC.
Section 291. Continuance of nuisance after injunction to discontinue.
An offender of public nuisance who has been urged by a public servant having the proper authority, to cease his activity causing a public nuisance, if repeats or continues such activity must be punished with simple or rigorous imprisonment of six months and fine.
Section 292. Sale, etc., of obscene books, etc. AND Section 293. Sale, etc., of obscene objects to the young person.
These two sections were added to IPC by complying to a resolution passed by the International Convention for the suppression and circulation of, and traffic in obscene publications. After the Indian Penal Code (Amendment) Act 1969 certain changes were brought to these sections.
For more clarity of the term ‘obscenity,’ the first clause provides an explanation for it in Section 292. It says any person who has as a medium of book, writing, pamphlet, painting, paper, figure, representation or any other object which is salacious in nature through distribution, print, importation, sale or exhibition tends to corrupt or deprave persons who read, see or hear the matter contained in it shall be made punishable under Section 292.
Further, it is noteworthy to see that the framers of Indian Penal Code, did not define the term ‘obscenity’ realizing that the idea is tentative and its definition would be dependent upon the morals standard in the contemporary society.
The constitutional validity of Section 292 was challenged on the premise of being violative of Article 19 which guarantees the right to freedom of speech, in the landmark case of Ranjit D Udeshi v. State of Maharashtra, wherein the Apex court observed that:
“It can hardly be claimed that obscenity which is offensive to modesty or decency is within the constitutional protection given to free speech or expression because the article dealing with the right itself excludes it. That cherished right on which our democracy rests is meant for the expression of free opinions to change political or social conditions or for the advancement of human knowledge.
This freedom is subject to reasonable restrictions which may be thought necessary in the interest of the public and one such is the interest of public decency and morality. Section 292 manifestly embodies such a restriction because of the law against obscenity..seeks no more than to promote public decency and morality and thus cannot be held invalid in the view of Article 19(2) of the Indian Constitution.”
Further, it would wrong to perceive that sex/nudity and obscenity are similar concept synonymous to each other. Only when it gives birth to impure thoughts in the minds of ordinary people will it amount to obscenity and thus, the relevancy of the circumstances under which such expressions or pictures have been challenged is important to be considered. Vulgar writing is therefore not necessarily obscene. In this regard the Apex court has provided its insights:
“A vulgar writing is not necessarily obscene as is arouses a feeling of disgust and revulsion and also boredom but does not have an effect of depravity, debasing and corrupting the morals of any reader the novel, whereas obscenity has a tendency of depraving and corrupting those minds which are open to such immoral observations.”
The test for obscenity was laid down by Cockburn CJ in the case of R v. Hicklin. According to the test if the matter in question is debasing to the extent that those who are open to immoral influences will be depraved and corrupted so as to suggest them of either sex or thoughts which are lascivious in nature, then it is certain that the matter is obscene.
More importantly, when a judge is to decide a case of obscenity he is mandated to wear the shoes of the author and try to understand from his perspective the artistic or literary value he wants to demonstrate and thereafter understand the viewpoint of a reader what kind of influence such artistic or literary demonstration will be administered on him.
Section 293 provides for enhanced punishment of simple or rigorous punishment od=f three years and fine if the circulation of such expression or print of obscene matter is done to young persons who are below the age of 20.
Section 294. Obscene acts and songs.
To establish conviction under this section following ingredients must be satisfied:
- The obscene act must be done in public place or recitation or utterance of song or words in or in the vicinity of the public place
- Annoyance has been caused as a consequence
Section 294 does not constitute an act done in private. In the case of Deepa v. SI of Police, the dance performed by cabaret dancers in a posh hotel was in question. It was held that the performance amounted to obscenity as the dancers showed their private part libidinously and danced to the annoyance of the audience. The performance cannot be said to have been done in a private enclosure as hotels and restaurants are accessible to the ordinary public.
However, in another case of State of Maharashtra v. Miss Joyce, the High court of Bombay had decided that since hotels where the cabaret dancers perform are private and enclosed places where access is allowed to persons who are willing to witness such performances cannot protect a person who is aggrieved or ‘annoyed’ after witnessing it. It only after such an adult has consented to witnessing such acts that he gets to be in a place where such performance is going on.
Section 294A. Keeping the lottery office
The lotteries which are unauthorized by the government are made punishable under this Section. Two methods have been devised to prohibit such circulation of money by chance:
- Charging the keeping of places or offices for drawing such lotteries
- Penalizing the advertisements pertinent to them
Nevertheless, in situations where the person have agreed to settle the payment of subscriptions by casting lots, Section 294A cannot be attracted because such a contract is not attended by uncertainty and risk.
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