Sinna Gura v. Inspector of Police, SlarawaneZla
1957Present: Sinnetamby, J.
SHOTA GURA, Appellant, and INSPECTOR OP POLICE, KARAWA-
S. G. 1,320—M. G. AvissaweUa, A. 794
Criminal Procedure Code—Sections 105 and 109 (3)—Applicable only to publionuisances.
Section. 105 of the Criminal Procedure Code applies to public, and not toprivate, nuisances. A Magistrate, therefore, is not entitled to make an orderunder that section in respect of a tree standing on a neighbour’s land althoughit is likely to fall down and damage buildings of the complainant and injuremembers of his family.
.£ APPEAL from a judgment cf the Magistrate's Court, AvissaweUa.
T. W. Rajaratnam, for Respondent-Appellant.
Pasupati, Crown Counsel, for Attorney-General.
SI2 2'TETAMBY, J.—Sinna Gura v. Inspector of Police, Harawanella
March 12, 1957. Seetetamby, J.—
The appeal is against an order made by the learned Magistrate ofAvissawella under the provisions of section 109 (3) of the CriminalProcedure Code making absolute a conditional order under section 105of the Code relating to public nuisances. The evidence in this case showsthat the damage which was likely to be caused by the jak tree in questionwould be confined to the complainant and the members of his family.By complainant I refer to Velun Singho, on whose complaint the policehad filed this case. The learned Magistrate has not considered thisaspect of the matter but had come to the conclusion that the tree inquestion was likely to fall down and damage buildings of the complainantand injure his children. Learned Counsel for the appellant contendedthat in these circumstances the Magistrate was not entitled to make anorder under section 105. He cited the case of Fernando v. Fernando which is conclusive on the point. Soertsz, A.J., who delivered thejudgment held that there is no provision in the Criminal Procedure Codewhich gives jurisdiction to a Magistrate to entertain a prayer for reliefagainst a private nuisance and that the provisions of the CriminalProcedure Code are intended for suppression of public nuisances. In thatcase, as in this, a tree standing on a neighbour’s land, it was established,was likely to injure the complainant and the other members of his family.The learned Magistrate has not appreciated the fact that Cap. 9 relatesonly to public nuisances.
The order appealed against is accordingly quashed.