Present : The Hon. Sir Joseph T. Hutchinson and
Mr. Justice Middleton.

FORREST v. LEEFE.

P. C, Galle, 47,198.

Criminal Procedure Code, ss. 105, 109, SS8, and 425-Order to abate a nuisance-Appeal lies-What constitutes a public nuisance.
An appeal lies against an order absolute (under o section 109, Criminal Procedure Code) to abate a public nuisance.

A person cannot by long continuance of his practice acquire a right to carry on a business in such a way as to be a public nuisance. If the place where he carried it on was at first surrounded by land on which there were no dwellings, but houses gradually approach it, so that it becomes a nuisance to the inhabitants, they have a right to have it abated. He cannot by making injurious noises or smells for a long time deprive the public of the right to live peaceably and comfortably ' on the land near him. The doctrine that a man who " goes to " a nuisance has no legal right to have it abated is not now accepted; there are things which would be a nuisance in a quiet village, which we would not consider to be a nuisance in a crowded manufacturing town.

THIS was an appeal against an order absolute to abate a public nuisance made under section 109 of the Criminal Procedure Code. The facts appear sufficiently from the judgments. The case was first argued before Middleton J.

H. J. C. Pereira, for the appellant.

Garvin, CO. (with him Akbar), raised the preliminary objection that no appeal lay against an order made under section 109. Middleton J. referred the point for the consideration of a Bench of two Judges.

Garvin, G.C. (with him Akbar, CO.). for the respondent.-No appeal lies against an order under section 109. The order is not a final order for the reasons given by the Full Court in Culantaivalu v. Somasundram.[1 (1905) 2 Bal. 122.] The powers of the Court are not exhausted with the order made under section 109. See sections 110 and 111.

H. J. C. Pereira (with him if. A. Jayewardene), for the appellant.- This is a final order. The moment the conditional order is made absolute, finality is reached. The fact that, the Court has not exhausted all its powers with the making of the order is immaterial; otherwise no judgment of a criminal court will be final until the

accused had suffered the punishment imposed. Numerous appeals have been entertained by this Court and in India against -made under section 109.

[Their Lordships took time to consider their decision on the point argued, and after consideration intimated that they would hear the appeal.]

H. J. C. Pereira, for the appellant.-The proceedings in this case are irregular. The first Magistrate, Mr. Forrest, appears to have acted both as prosecutor and judge when he made the order under section 105. Under section 105 the Magistrate has no power to initiate proceedings ex mero motu suo. He can only act on receiving a report or other information. The special procedure provided by chapter IX. was not followed; the Magistrate, Mr. Forrest: originally purported to act under section 148 (c), and not under section 105. [Hutchinson C..T.: Every criminal proceeding must commence under section 148.] But there is a special procedure under section 105. In ordinary cases a Magistrate may initiate proceedings of his own knowledge and only issue summons. In this case Mr. Forrest has made an order against the accused under section 105; and it was for the accused to show cause against the order. The Magistrate may only initiate proceedings under section 148 for " offences." Section 105 does not refer to offences only, but also to various matters which are not offences. See Penal Code, section 3, for definition of offence. The order under section 105 merely says that the noise interferes with the business of the Court; it does not say that the noise was injurious to the health or physical comfort of the community. Though it must be admitted that a person cannot, strictl