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MARSHALL v. GUN ARATNE UNNANSE et al.1896.
July 22 and
Municipal Court, Colombo, 2,062.August 9.
Ordinance No. 16 of 1805, e. 90—Beating of drums at night without a license—
Public nuisance by religious body.
A religious body is not entitled to commit a public nuisance by thebeating of drums and tolling of bells, and no license under section 90 ofOrdinance No. 16 of 1865 will be a protection against proceedings underthe Penal Code, though it may be a protection against proceedings underthe Ordinance.
Holland v. Kapugaina Terunndnse (P. C. Mdtara, No. 80,576, 1 S. C.
C. 90) and Janes v. Endoris (P. C. Oalle, No. 1,582, 9 8. C. C. 204)commented upon.
rpHIS was a prosecution under section 90 of Ordinance No. 16-1- of 1865 against the chief monk and the principal trusteeof the Buddhist Yihar6 at Hunupitiya, who were charged withbeating drums or tom-toms, and otherwise creating a noise in thenight, whereby the repose of the inhabitants in the neighbourhoodwas disturbed, without a license.
The Police Magistrate acquitted the second accused (trustee)aud found the first accused guilty “ of having tom-toms beaten“ without a license,” and sentenced him to pay a fine of Rs. 10, orin default to undergo simple imprisonment for one week.
Pereira appeared for him at the argument in appeal, on July22, 1895.
Cur. adv. vult.
9th August, 1895. Bonser, C.J.—
The appellant was charged under the 90th section of the PoliceOrdinance, 1865, “ that he did on the 6th and 12th days of June,“1895, in the pansala at Hunupitiya, beat tom-tom between 6“ and 12 P.M. without a license from the Police Magistrate or the“ Superintendent of Police of the district.”
This section is drawn in such a way as to be almost unintelli-gible, and has consequently given rise to some diversity ofjudicial opinion (see 1 S. C. C. 90 and 9 S. C. C. 204). In theformer case Phear, C.J., held that the words “ except under“ military regulation, or unless they shall have obtained a license“ from the Police Magistrate or from the Superintendent of Police,“ who are hereby authorized to grant the same, when it shall to
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1895.“themappear expedient," referred only to the clause, “or who'
JVA%g%iH9iUa* an7 ^me discharge firearms, crackers, or fireworks."
But the Full Court in the latter case held that the words referred
also tothe previous clause, “ who shall beat drums or
“ tom-toms, or have, or use any other music calculated to frighten“ horses, or who shall make any noise in the night so as to“ disturb the repose of the inhabitants.”
This construction leads to the curious result that a PoliceMagistrate is authorized to license persons to make a noise in thenight so as to disturb the repose of the inhabitants, but I ambound by it.
It was proved that the appellant is the clergyman in residenceat the clergy-house or pansala of a Buddhist temple ; that duringthe month of June there were some special services held at thetemple, which lasted for above a fortnight, and that to stimulatedevotion a great noise was made by beating of tom-toms andtolling of bells, which went on almost without intermission dayand night, to the great annoyance of the neighbourhood.
There was no evidence that the appellant had anything to dowith the management of the special services, or was present atthem.
The Police Magistrate convicted the appellant of “ having“ tom-tom beaten without a license.”
It will be seen that the appellant was charged with one offenceand convicted of another, but if the evidence would support theconviction and the appellant was not prejudiced by the irregu-larity, it could be set right by amendment.
Phear, C.J., in the case above referred to, doubted whetherany but the actual beater of the tom-tom could be convictedunder this section. But whether this be so or not, there is noevidence in this case to support the conviction.
At the same time, the idea must not be entertained that anoise, which is an annoyance to the neighbourhood, is protectedif it is made in the course of a religious ceremony.
No religious body, whether Buddhist, or Protestant, orCatholic, is entitled to commit a public nuisance, and no licenseunder section 90 of “The Police Ordinance, 1865,” will be aprotection against proceedings under the Penal Code, though itmay protect them from proceedings under the Police Ordinance.
MARSHALL v. GUNARATNE UNNANSE et al