MARSHALL v. GUNARATNE UNNANSE et al

MARSHALL  v.  GUNARATNE  UNNANSE et al.

Municipal Court, Colombo, 2,062.

Ordinance No. 16 of 1865, s. 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 the beating of drums and tolling of bells, and no license under section 90 of Ordinance No. 16 of 1865 will be a protection against proceedings under the Penal Code, though it may be a protection against proceedings under the Ordinance.

Holland v. Kapugama Terunnanse (P. C. Matara, No. 80,576, 1 S. C. C. 90) and Jansz v. Endoris (P. C. Galle, No. 1,582, 9 S. C. C. 204) commented upon.

THIS was a prosecution under section 90 of Ordinance No. 16 of 1865 against the chief monk and the principal trustee of the Buddhist Vihare at Hunupitiya, who were charged with beating drums or tom-toms, and otherwise creating a noise in the night, whereby the repose of the inhabitants in the neighbourhood was disturbed, without a license.

The Police Magistrate acquitted the second accused (trustee) and found the first accused guilty " of having tom-toms beaten " without a license," and sentenced him to pay a fine of Rs. 10, or in default to undergo simple imprisonment for one week.

He appealed.

Pereira appeared for him at the argument in appeal, on July 22,1895.

Cur. adv. vult.

9th August, 1895. BONSER, C. J.-

The appellant was charged under the 90th section of the Police Ordinance, 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 unintelli­gible, and has consequently given rise to some diversity of judicial opinion (see 1 S. C C. 90 and 9 S. C. C. 204). In the former 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

" them appear expedient," referred only to the clause, " or who V shall at any time discharge firearms, crackers, or fireworks. "But the Full Court in the latter case held that the words referred also to the 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

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