Public nuisance, mischief and criminal trespass

1. Public nuisance: section 270

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 (old s.268 IPC). The elements:

• an act, or an illegal omission;
• causing common injury, danger or annoyance;
• to the public, or to people in the vicinity, or to persons using a public right such as a road or a river.

The section ends with a rule worth quoting: a common nuisance is not excused on the ground that it causes some convenience or advantage. A factory that employs the whole village still commits a public nuisance if its fumes make the village sick.

The distinction from private nuisance is the effect on the public. Annoyance to one neighbour is a private nuisance and a civil wrong; annoyance to the public, or to everyone in a locality, is a crime. A person who suffers special damage from a public nuisance may also sue in tort.

2. Punishment and related offences

• s.292 (old s.290): public nuisance not otherwise punishable, fine up to one thousand rupees (raised from two hundred).
• s.293 (old s.291): continuing a nuisance after being enjoined by a public servant, simple imprisonment up to six months, or fine up to five thousand rupees, or both.
• Specific nuisances in Chapter XV include spreading infection of dangerous disease (ss.271 and 272), disobeying quarantine rules (s.273), adulterating food or drugs (ss.274 to 278), fouling a public water source (s.279), vitiating the atmosphere (s.280), rash driving on a public way (s.281), negligent conduct with fire, explosives, machinery or animals (ss.287 to 291), and obscene books and acts (ss.294 to 296).

The faster remedy is procedural. A District or Sub-divisional Magistrate may make a conditional order for the removal of a nuisance under s.152 BNSS (old s.133 CrPC). In Municipal Council, Ratlam v. Vardhichand, 1980 INSC 138, (1980) 4 SCC 162, residents complained of open drains and the stench from a distillery. The Supreme Court upheld the Magistrate's order directing the municipality to build drains, and held that a municipality cannot plead lack of funds to escape its statutory duty to abate a public nuisance. The case is the standard authority on the Magistrate's power, which now sits in s.152 BNSS.

3. Mischief: section 324

Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in it or in its situation as destroys or diminishes its value or utility, or affects it injuriously, commits mischief (old s.425). The elements:

• intention or knowledge of likely wrongful loss or damage;
• to the public or any person;
• destruction of property, or a change in it or its situation;
• which destroys or diminishes its value or utility or affects it injuriously.

Explanation 1: the offender need not intend loss to the owner; it is enough that he intends wrongful loss to any person by injuring any property. Explanation 2: mischief may be committed in respect of one's own property, or property held jointly. So A who shoots a horse he owns jointly with Z, to cause loss to Z, commits mischief (illustration (g)); so does a shipowner who scuttles his own insured ship to defraud the underwriters (illustration (e)). Other illustrations: burning Z's valuable security, letting water into Z's ice-house, driving cattle into Z's field to damage the crop.

4. Punishment and aggravated mischief

• s.324(2): simple mischief, up to six months, or fine, or both.
• s.324(3): mischief causing loss or damage to any property, including that of the Government or a local authority, up to one year.
• s.324(4) and (5): loss of twenty thousand rupees up to one lakh, up to two years; one lakh or more, up to five years. These value slabs replace the old fifty-rupee threshold in s.427 IPC.
• s.324(6): mischief after preparation for causing death, hurt or restraint, up to five years.
• s.325 (old ss.428 and 429): killing, poisoning, maiming or rendering useless any animal, up to five years. The BNS dropped the old value thresholds, so every animal is protected.
• s.326 (old ss.430 to 436): mischief by diminishing water supply, making a public road or bridge unsafe, causing inundation, moving navigation signals or land-marks, and by fire or explosives, up to life where a dwelling or place of worship is destroyed.
• s.327 (old ss.437 and 438): mischief to a rail, aircraft or decked vessel to destroy or make it unsafe; s.328 (old s.439): running a vessel aground to commit theft.

5. Criminal trespass: section 329(1)

Whoever enters into or upon property in the possession of another with intent to commit an offence, or to intimidate, insult or annoy any person in possession, or, having lawfully entered, unlawfully remains there with such intent, commits criminal trespass (old s.441). The elements are (i) entry into or remaining on property, (ii) in another's possession, and (iii) one of the listed intents.

The intent is the heart of the offence. Entry without right but without such intent is a civil trespass only. In Mathri v. State of Punjab, 1963 INSC 253, AIR 1964 SC 986, landlords tried to take possession of land from tenants after their execution warrant had lapsed. The Court held that the court must look for the dominant intention of the entry. Knowledge that entry is likely to annoy the person in possession is not by itself the same as an intent to annoy; where the main aim is to take possession under a claim of right, the offence is not automatically made out. Possession, not ownership, is what the section protects, so even an owner can trespass on land in the settled possession of another.

6. House-trespass and its aggravated forms: sections 329 to 334

• House-trespass (s.329(2), old s.442): criminal trespass into a building, tent or vessel used as a human dwelling, a place of worship, or a place for custody of property. Introducing any part of the body is entry. Punishment: criminal trespass up to three months (s.329(3)); house-trespass up to one year (s.329(4)).
• Lurking house-trespass (s.330(1), old s.443): house-trespass after taking precautions to conceal it from a person entitled to exclude the trespasser.
• House-breaking (s.330(2), old s.445): house-trespass by entering or quitting in one of six ways, such as through a passage made by the trespasser, by scaling a wall, by opening a lock, or by using or threatening force.
• Punishment: s.331 (old ss.453 to 460) grades lurking house-trespass and house-breaking by night, by purpose (up to ten years if to commit theft, fourteen if by night), by preparation for hurt and by causing grievous hurt. The IPC's separate idea of “by night” is now expressed as “after sunset and before sunrise”. Section 332 (old ss.449 to 451) punishes house-trespass to commit an offence, and s.333 (old s.452) house-trespass after preparation for hurt.
• s.334 (old ss.461 and 462): dishonestly breaking open a closed receptacle containing property.

7. Problem

A, a tenant whose lease has expired, refuses to leave the flat. The landlord, B, enters when A is away, removes A's furniture into the corridor and changes the lock.

Issue. Whether A commits criminal trespass by staying on; whether B commits house-trespass or mischief.

Law. Criminal trespass needs entry or unlawful remaining with intent to commit an offence, intimidate, insult or annoy (s.329(1)). It protects possession, not title.

Application. A entered lawfully; his staying on after expiry is a civil wrong, and there is no intent to annoy, so he commits no offence. A tenant holding over is still in settled possession, so B's entry into the flat is an entry into property in the possession of another. If B's purpose was to throw A out by his own act, which is unlawful without a decree, and he knew A would be annoyed, a court applying Mathri would ask whether annoyance was part of his aim. Removing the furniture into the corridor does not destroy its value and is not mischief unless it is damaged.

Conclusion. A is not guilty. B may be guilty of house-trespass under s.329(4) if his dominant intent was to evict A by force rather than to use a right; his proper course was a suit for eviction.

How this is examined

As 6-mark short notes: “Mischief”, “Public nuisance”, “Criminal trespass” or “House-breaking”. For public nuisance give s.270, the convenience rule, s.292 and Ratlam; for mischief give s.324, both Explanations and the new value slabs; for trespass give s.329 and Mathri.