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Present: De Sampayo J.SARAM v. SENEVIRATNA.
502—P. G. Colombo, 15,045.
Criminal Procedure Code, *.105—Public nuisance-1- “ Trade or
occupation injurious to the health or physical comfort of thecommunity. ”
The accused was the proprietor of an oil store where cooperingwas carried on.The noise created by' the constant hammering on
barrels affected the whole neighbourhood.
The Police Magistrate, acting under Chapter IX. of the CriminalProcedure Code, ordered the accused to abate the nuisance.
Held, that the Magistrate was right in acting under Chapter IX.'* A nuisance which affects only those living in the neighbour-hood, and not necessarily the public in general, may be the subjectof proceedings under this chapter.”
rJ'tIE facts appear from the judgment.
Bawa, K.C. (with him Goonetilleke), for accused, appellant.
R.L. Pereira, for complainant, respondent.
July 4, 1918. De Sampayo J.—
The appellant is the proprietor of an oil store at Charles place,Colpetty, where coopering is carried on during the day, andsometimes also at night. The noise created by the constanthammering on barrels is calculated to injure the health and physicalcomfort of persons resident in the neighbourhood. He has beenproceeded against under Chapter IX. of the Criminal ProcedureCode for what is undoubtedly a nuisance, and the Police Magistratehas ordered him to abate the nuisance. The only question fordecision is whether the nuisance is of such a kind as is contemplatedby the Criminal Procedure Code. The second paragraph of sub-section (1) of section 105, which applies to this case, empowers thePolice Magistrate to act under the provisions in question, when heconsiders “ That any trade or occupation or the keeping of anygoods or merchandise should by reason of its being injurious tothe health or physical comfort of the community be suppressed orprohibited.”
It is true that under this chapter the nuisance complained of mustbe of a public and not of a private kind, but I do not think that thedistinction intended is exactly that between public nuisances and
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private nuisance as generally understood. For instance, it isnoticeable that the passage above cited refers to the health orphysical comfort, not of the " public ”, but of the “ community ”,while the word “ public ” is used in certain other paragraphs of thisvery sub-section. I take it that ‘‘ community " means here whatit means in the Penal Code, which declares the word “ public ” toinclude ” any class of the public or any community.” Again, aninstance of a nuisance given in another paragraph of the same sub-section is that of a building or tree likely to fall and thereby causeinjury to persons ” living or carrying on business in the neighbour-hood. ” Thus, a nuisance which affects only those living in theneighbourhood, and not necessarily the public in general, may bethe subject of proceedings under this chapter. Apart from thescope of these particular provisions, the present case is, I think, anexample of a public nuisance in the ordinary sense. The meaningto be gathered from English authorities is thus stated in the Lawsof England, vol. 21, p. 511: “ A public nuisance is one which inflictsdamage, injury, or inconvenience upon all the King's subjects, orupon all those who come within the sphere of its operation. ” Theevidence in this case shows that the whole neighbourhood is affectedby the continuous noise of coopering in the appellant’s oil store.Moreover, as stated at page 508 of. the same volume of the Lawsof England, the interpretation of the word “ nuisance ” used in anystatute is governed by the purpose and context of the statute, andit is shown that in the Public Health Acts, for instance, nuisancesfor the purpose of the provisions relating to methods of summaryabatement are such as affect the health and comfort of the neigh-bourhood. Chapter IX. of our Criminal Procedure Code in generalre abatement of nuisances has the same purpose in view, andshould, in my opinion, be construed so as to apply the remedy tosuch a nuisance as the present. The extent of the nuisance forthe purpose is a question of fact in each case. This being so. thecase of B. v. Lloyd,1 cited by Mr. Bawa, is really an authority againstthe appellant rather than for him. That was a prosecution againsta tinman for a public nuisance caused by the noise made by theaccused in carrying on his trade. The prosecutors were the bodyof solicitors having chambers in Clifford’s Inn, but it transpiredthat the noise only affected three chambers, and that by shuttingthe windows the noise was in a great measure prevented. LordEllenborough thereupon held that the nuisance was “ not of suffi-ciently general extent to support the indictment.” It is clear thatthe decision would have been different if the facts showed that notthree, but all or most of the officers were affected by the noise.
I think also that the provision of the Penal Code throws light onthis matter. The Penal Code provides for the punishment ofcertain nuisances as offences, and the provisions of the Criminal
i 4 E*p. 100.
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Procedure Code appear to me to be only supplementary. Section261 of the Penal Code provides as follows:“ A person is guilty
of a public nuisance who does any actwhich causes
any common injury, danger, or annoyance to the public or to thepeople in general who dwell or occupy property in the vicinity. ”Here, again, it is noticeable that the act may be a “ publicnuisance," though it only affects people dwelling in the vicinity.All that is essential is that the injury, danger, or annoyance should be" common ", and not special to a few individuals. In an Indiancase referred to in Batanldl’s Law of Crimes 487 it was held that theexpression " people in general ” in the corresponding section of theIndian Penal Code meant a body or considerable number of persons,and, as the learned authors put it at page 486, it is in the quantumof annoyance that public nuisance differs from private. As I havesaid, the noise caused by the appellant’s coopering business affectsall those who dwell in the vicinity, viz., those occupying houses inCharles place, Bagatelle road, and Alfred place. One or two ofthem, who are relatives or friends of the appellant, have givenevidence for him. But the Police Magistrate has, for reasons whichappear to me sound, found that their evidence is interested, anddoes not, in fact, support the defence. In my opinion the actcomplained of in this case comes within the provisions <>f section10$ (I) of the Criminal Procedure Code, and the Police Magistratehas properly taken cognizance of it.
The order appealed from is right. The appeal is thereforedismissed.
SARAM v. SENEVIRATNA