Sen, J.

[1] This rule was obtained by the petitioners against whom an order has been passed in proceedings under Section 133, Criminal P. C., by the Sub-Divisional Magistrate of Asansol directing the petitioners to refrain from working in ice-cream making machine between the hours of 11 P. M. and 5 A. M.

[2] The case against the petitioners briefly is as follows : The petitioners have a shop in certain premises where they make ice-cream. The ice-cream is made in a refrigerator. It is said that the noise created by the working of the refrigerator constitutes a public nuisance. The defence taken is that the noise made is not a public nuisance. The learned Magistrate, as I stated before, has passed an order restraining the petitioners from working this machine for a certain period. A motion was taken from this order to the Sessions Judge and he has confirmed it.

[3] The first point raised by learned advocate appearing for the petitioners is that the alleged nuisance, if it be a nuisance at all is not a public nuisance and therefore proceedings under Section 138, Criminal P. C., to abate the nuisance are not permissible. His contention is that proceedings under Section 133, Crimi