Law and You > Criminal Laws > Indian Penal Code >Public Nuisance (S. 268 IPC)
The Indian Penal Code in chapter XIV from sections 268 to 294A deals with the offence of public nuisance. These offences include affecting public health, safety, convenience, decency and morals.
Nuisance could be defined as unlawful interference in the peaceful enjoyment of one’s property, or any right associated with it. Nuisances may be divided into two main headings namely, (i) private nuisances and (ii) public nuisances. This division is not exhaustive, and to some extent overlap with each other. Nuisances may be permanent, continuing, recurrent and temporary. There is immediate remedy for public nuisance under Section 133 of CrPC.
Private nuisance is the using or authorizing the use of one’s property, or of anything under one’s control, so as to injuriously affect an owner or occupier of property by physically injuring his property or affecting its enjoyment by interfering materially with his health, comfort or convenience.
Public Nuisance (S. 268 IPC):
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.
The term ‘public’ is defined in s. 12 of IPC, 1860. The word ‘public’ includes any class of the public or any community. Thus, a class or community residing a particular locality may come within the term ‘public.
Therefore, public nuisance is doing such an act that tends to cause annoyance to the whole community, in general, omitting to do anything which the common good requires. In other words, a public nuisance is an act which affects the public at large, or the health, safety, comfort or convenience of the public at large, or which tend to degrade the public at large, or tend to degrade public morals, has been regarded as a public nuisance. Every omission will not constitute an offence under this section. Unless the omission which causes the nuisance as an illegal omission in the above sense, there will be no public nuisance.
In Bharosapatak v. Emperor (1912) CrLJ 183 (ALL) case, the Court observed that in the second paragraph of the section, it is stated that a common nuisance cannot be excused on the ground that it causes some convenience or advantage. This means that it is no defence to a charge of committing a common nuisance that the act in question was done to prevent or mitigate some harm to the accused’s interest or to protect his own lands and crops.
Ingredients of Public Nuisance:
- A person must have done or must be guilty of an illegal omission; and
- Such an act or omission, must cause some injury, threat or disturbance to the public or to the people in general who dwell or occupy a property in the vicinity; or must cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right.
In K Ramakrishnan vs state of Kerala, AIR 1999 KER 385 case, where it was argued that smoking of tobacco in any form of public places makes the non-smokers ‘passive smokers’ and thereby causes public nuisance as defined under s 268 of the IPC. The Kerala high court, therefore, was urged to declare smoking of tobacco not only illegal as it causes public nuisance but also unconstitutional. The high court held that tobacco smoking in public places in the form of cigarettes, cigars, or beedis falls within the mischief of the penal provisions relating to public nuisance. Relying upon the right to life guaranteed under article 21 of the constitutional the high court declared that smoking of tobacco is unconstitutional.
In Burgess v. M/V Tamano, 370 F. Supp. 247 (D. Me. 1973) case, where an oil tanker ran aground on the coast of Maine, releasing 100,000 gallons of oil into the water. The result was an environmental disaster, devastating local marine life and severely impacting a town’s tourism industry. Local fishermen sued for loss of livelihood and hotel and restaurant owners sued for loss of business from visitors to the area. The court ruled that the spill constituted a public nuisance because it deprived the local community of the full use of the public coastline. The court determined, however, that only the fishermen and those earning their living directly from the ocean could successfully sue under a public nuisance theory. Unlike the hotel and business owners, who were impacted indirectly in the same manner as the public at large, the fishermen suffered a distinct harm, different in kind than the harm suffered by everyone else.
Various Public Nuisance Under IPC:
| Section | Public Nuisance |
| 269 | Negligent act likely to spread infection of disease dangerous to life |
| 270 | Malignant act likely to spread infection of disease dangerous to life |
| 271 | Disobedience to quarantine rule |
| 272 | Adulteration of food or drink intended for sale |
| 273 | Sale of noxious food or drink |
| 274 | Adulteration of drugs |
| 275 | Sale of adulterated drugs |
| 276 | Sale of drug as a different drug or preparation |
| 277 | Fouling water of public spring or reservoir |
| 278 | Making atmosphere noxious to health |
| 279 | Rash driving or riding on a public way |
| 280 | Rash navigation of vessel |
| 281 | Exhibition of false light, mark or buoy |
| 282 | Conveying person by water for hire in unsafe or overloaded vessel |
| 283 | Danger or obstruction in public way or line of navigation |
| 284 | Negligent conduct with respect to poisonous substance |
| 285 | Negligent conduct with respect to fire or combustible matter |
| 286 | Negligent conduct with respect to explosive substance |
| 287 | Negligent conduct with respect to machinery |
| 288 | Negligent conduct with respect to pulling down or repairing buildings |
| 289 | Negligent conduct with respect to animal |
| 290 | Punishment for public nuisance in cases not otherwise provided for |
| 291 | Continuance of nuisance after injunction to discontinue |
| 292 | Sale, etc., of obscene books, etc. |
| 292A | Printing, etc., of grossly indecent or scurrilous matter or matter intended for blackmail |
| 293 | Sale , etc., of obscene objects to young person |
| 294 | Obscene acts and songs |
| 294A | Keeping lottery office |
Conclusion:
Public nuisance is a crime. It is punishable offence. The state is entrusted with a liability to arrest and produce the accused before the Court and get him punished. Various provisions for punishment are given in Sections 269 to 294A in the Code. One important defence is called ‘coming to the nuisance’. It applies when the harmful activity was operating before the plaintiffs acquired the property impacted by the nuisance. If the owners were aware of the nuisance-creating activity at the time they purchased the property, the defendant may invoke the defence of ‘coming to the nuisance’. This defence effectively argues that the plaintiffs knew what they were getting themselves into and assumed the risk of harm. While in the past, ‘coming to the nuisance’ was considered an absolute defence, today it is a factor that the courts will consider in determining whether the plaintiffs may recover for nuisance.