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CADER SAIBO v. BRANHA.P. C., Kandy, 3,599.
Nuisance—Abatement—Appointment of jury—Procedure.
An order by a Police Magistrate to suppress a public nuisancemust specify the particular trade or occupation, and the place inwhich it is carried on, and that it has been made to appear to theMagistrate that the trade is injurious to public health or comfortfor causes stated.
When a person who is served with an order for the abatement ofa nuisance applies to the Police Magistrate for the appointment ofa jury, under section 120 of the Criminal Procedure Code, to trywhether the order made is reasonable or-not, the Police Magistratemust meet the jury he has summoned and explain to them the issuewhich they have to try. It is necessary that he should call on theoriginal informant or petitioner and on the respondent to adducerelevant evidence, oral and documentary, that he should fix a timewithin which the jury must return the verdict, and that the juryshould proceed together to the place, and after evidence heardfind whether the order of the Magistrate is reasonable, or in whatrespects it needs amendment. If the Magistrate accepts themodifications, he may make the order so modified absolute ; butif the jury do not find the order reasonable, or if they suggest amodification which the Magistrate cannot accept, then section 121provides that “ no further proceedings shall be taken.”
Bawa, for appellant.
Bias, for respondent.
4th March, 1897. Lawkie, J.—
In my opinion all these proceedings were irregular.
It does not appear that the Magistrate received a report or otherinformation', or that he took any evidence before he made theconditional order on K. C. C.'Saibu, of Katugastota, “ to suppressor remove the tannery within fifteeo days.”
This order is bad for uncertainty. It should have statedr theparticular trade or occupation and the place where it is carried on.
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It should have stated that it had been made to appear to theMagistrate that the same was injurious to the public health orcomfort by reason of causes whioh should be briefly stated in theorder. Form XVI. of- the Criminal Procedure Code (p. 364) shouldhave been followed.
The respondent appeared to the informal order and notice, andapplied to the Magistrate to appoint a jury to try whether theorder was reasonable and proper. A jury of nine was appointed.Seemingly the Magistrate overlooked the decision reported in9 S. C. C. 66.
It does not appear that the Magistrate summoned the jury toattend at a place and time he thought fit (as is provided by sub-section (b) of section 120).
I am of the opinion that it is necessary that the Magistrateshould meet the jury and should explain to them the issue whichthey had to try; that he should call on the original informantor petitioner and on the respondent to adduce relevant evidence,oral and documentary, which should be adduced in presence ofthe Magistrate and of all the jury ; and that the Magistrate shouldfix a time within which the jury must return the verdict. It ispermissible (and indeed in most cases necessary) that the juryshould view the site of the alleged public nuisance: the juryshould go together to the place, not one by one at different times,and they should thereafter all orally or in a writing to be signedby all find either that the order of the Magistrate is reasonableand proper, in which case it should be made absolute, or that itwould be reasonable and proper if modified, and then the Magistratemay accept the modification and make the order so modifiedabsolute ; but if the jury do not find the order reasonable, or if theysuggest a modification which the Magistrate cannot accept, then nofurther proceedings shall be taken.
It is not necessary now to decide whether, when all the proceed-ings before and by a jury have been regular, any appeal will lie.My opinion is that there is no appeal. It is sufficient in this caseto point out that the Magistrate had insufficient materials beforehim to make any order ; that the order he did make was bad foruncertainty; that he gave no directions to the jury ; that noopportunity .was given to the respondent to lead evidence ; andthat the finding of the jury is signed by eight only, and not by all.It is hot necessary that all should Agree. I think the opinion ofthe majority would prevail and be a good verdict, but all the jurymust take part in the verdict or finding, whether assenting ordissenting.
March 2and 4.
CADER SAIBO v. BRANHA