Proceedings under Section 133 CrPC can only be instituted in relation to public nuisances that affect the public at large, and not private nuisances that affect only a particular individual or their family.

1. This is a reference made to High Court under Section 438 of the Criminal Procedure Code and arises out of the order made in revision by the learned Additional Sessions Judge, Dharamsala, in a case under S. 133, Criminal Procedure Code instituted before the S. D. M. Palampur as a result to a complaint submitted by Jogeshwar Ram for a mango tree which is standing near his house and of which the branches extend upto his roof and is likely to endanger the security of his house in case it falls, due to the action of wind or rough weather. The complaint of Jogeshwar Ram was that the tree belonged to Hira Lal and is at a distance of about 10 to 12 yards away from his house. Some two years ago a branch of this tree fell and damaged the roof of the complainant. According to him, the roots of the tree have got exposed and it is likely to fall any time on his house and thereby cause damage to his life and property. The S. D. M. Palampur, after receiving the complaint, got the enquiry made through the Thesildar Palampur and his report indicated that the tree was situate at a close proximity of the house of the complainant and there was apprehension of danger from the tree to the complainant in case it falls over his house. Accordingly the learned Magistrate issued a conditional order under Section 133, Criminal Procedure Code, against Hira Lal so that, either he removes the tree or shows a cause why the same should not be removed.

2. Hira Lal appeared before the learned Magistrate and showed cause against removal of the tree. Both the parties examined several witnesses. Jogeshwar Ram produced four witnesses: Capt. Rikhi Ram (A. W. 1), Dhani Ram (A. W. 2), Nika Ram (A. W. 3) and Gian Chand (A. W. 4). Besides them, he gave his own statement. The opposite party Hira Lal gave his own statement and produced one witness Piyar Chand (R. W. 1). The learned Magistrate believed the evidence produced by Jogeshwar Ram and held that the tree was an unlawful nuisance and should be removed from the spot. Accordingly he made his conditional order absolute for the removal of such tree.

3. Hira Lal came in revision before the learned Additional Sessions Judge, Dharamshala, and succeeded in that Court. The learned Sessions Judge held, that the conclusion is irresistible after a perusal of evidence that the tree, if at all, constitutes a private nuisance and not a public nuisance. According to the learned Sessions Judge, proceeding under S. 133, Criminal Procedure Code cannot be instituted in relation to a private nuisance and hence, according to him, the complaint was misconceived and the learned Magistrate could neither make the preliminary order nor could make it absolute under that section. Hence the learned Sessions Judge has recommended for the quashing of the order of the learned Magistrate who had made his conditional order absolute.

4. The reference order is obviously contested by Jogeshwar Ram and supported by Hira Lal. The learned counsel for Jogeshwar Ram led me through the entire evidence. None of the witnesses has stated that any other member of the public, besides Jogeshwar Ram, is likely to be injured or his property damaged, as a result to the falling of the tree. It is no doubt admitted that the tree stands within the village abadi. From this, it cannot be inferred that the tree would create public nuisance, until It is established that any other person besides Jogeshwar Ram or his family members, is likely to be affected by the falling of the tree. Rather the evidence is that it is Jogeshwar Ram alone whose house would be affected by its falling and some two years ago the roof of his house got damaged by the falling of a branch from the tree. Therefore, as the evidence indicates, the tree is a nuisance for Jogeshwar Ram and his family members, and not for anybody else in the vicinity.

5. The complainants case for unlawful nuisance could only be covered under S. 133, Criminal Procedure Code, provided he succeeded in proving that the unl