The New Nation - Internet Edition

Advocate Jahangir Alam Sarker

In the Marx Brothers film Duck Soup, Groucho Marx plays the president of the mythical land of Sylvania. One day while in his office, he hears a noisy peanut vendor (Chico Marx) out in the street. "Do you want to be a public nuisance?" Groucho asks. "Sure," Chico replies, "How much does the job pay?" In Bangladesh, most people think that criminologists deal with crimes like murder, robbery, car theft, etc. There is a very narrow view because criminologists are in fact, concerned with events that may not appear to have any criminological implication. In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.

Spencer (1989 at 59) describes the offence as, "ta rag-bag of odds and ends which we should nowadays call 'public welfare offences." But the common feature of the crime is that members of the public suffer a common injury through interference with rights which they enjoy as citizens. The modern definition is found in paras 31-40 Archbold (2005):

"A person is guilty of a public nuisance (also known as common nuisance), who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all Her Majesty's subjects."

Nuisance is of two kinds, (1) public, (2) private. Private nuisance is defined to be anything done to the hur or annoyance of the lands, tenements of another, and not amounting to trespass. In the case of SH Mahamud Vs Md. Jahangir, - "Noise made in carrying on of lawful trade under licensee, if injures physical comfort of community, is a public nuisance as contemplated is Section 268 (PLD 1968 Dhaka 823).

The expression of Public Nuisance has been defined in Section 268 of the Penal Code as an act or 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. Public nuisance is an offence against the public, either by doing a thing which tends to the annoyance of the whole community in general or by neglecting to do anything which the common good requires.

Section: 268 of the Penal Code, 1860 requires two essential elements, such as -

A person must do an act or must be guilty of an illegal omission.

Such act or omission must cause- common injury, danger or annoyance (i) to public or (ii) to the people in general who dwell or occupy property in the vicinity, or Injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.

Public Nuisance may be undoubtedly caused without any deliberate intention of causing it and Section 290 does not refer to the intention of the accused person (AIR 1935 All-74). Section: 290 of the Penal Code, 1860 deals with the punishment for public nuisance in cases not otherwise provided for. According to the Section, whoever commits a public nuisance in any case not otherwise punishable by this Code shall be punished with fine which may extend to two hundred Taka.

Victim must prove the following condition, such as-

That the accused did an act or was guilty of an illegal omission.

That such act or omission caused injury, danger or annoyance.

That such injury, danger, or annoyance was common to the public or the people in general who dwell or occupy property in the vicinity.

Section: 291 of the Penal Code, 1860 deals with punishing a person continuing a nuisance after he is enjoined by a public servant not to repeat or continue it. For proving, it is very much essential to prove the following conditions as such -

The issue of the injunction.

That such injunction was legally issued.

That the injunction is one which restrains the repetition or continuance of a public nuisance.

Section 133 of the Code of Criminal Procedure, 1898 deals with the conditional order for Public Nuisance. No order duly made by magistrate under Section 133 shall be called in question in any Civil Court. And also added that "Public Place" includes also property belonging to the State camping grounds and grounds left unoccupied for sanitary purpose.

Section 133 of the Code of Criminal Procedure explores the remedies of the public nuisance. The remedies available in respect of public nuisance under civil law, Penal Code, Criminal Procedure Code and the local law are concurrent and the pursuit of one does not bar the other. A proceeding under section: 133 of the Code of Criminal Procedure, 1898 is therefore, not a condition precedent to a prosecution under the Penal code, or to the maintenance of the civil suit (1969 Rat, 23 DB).

From the above discussion, now it is very much clear that in our country the mere act of gambling in a private house is not a public nuisance. But where a person permits crowds of disorderly persons to make use of his house for gambling and his doing so has caused annoyance to the public, he is guilty of an offence under Section 290. Noise made in carrying on of lawful trade under licence, if injurious to physical comfort of community, is a public nuisance as contemplated in Section 268. (PLD 1968 Dhaka 823). Nuisance leading to the injury, destruction, danger to a person collectively are dealt with in the Section 133, CrPC which provides a speedy and summary remedy in case of urgency where danger of public interest is concerned.