1918.       Present: De Sampayo J.

SARAM   v.   SENEVIRATNA.

502-P. C. Colombo, 15,045.

Criminal Procedure Code, s. 105-Public nuisance - " Trade or occupation injurious to the health or physical comfort of the community. "

The accused was the proprietor of an oil store where coopering was carried on. The noise created by' the constant hammering on barrels affected the whole neighbourhood.

The Police Magistrate, acting under Chapter IX. of the Criminal Procedure 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 neighbour­hood, and not necessarily the public in general, may be the subject of proceedings under this chapter."

THE 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, and sometimes also at night. The noise created by the constant hammering on barrels is calculated to injure the health and physical comfort of persons resident in the neighbourhood. He has been proceeded against under Chapter IX. of the Criminal Procedure. Code for what is undoubtedly a nuisance, and the Police Magistrate has ordered him to abate the nuisance. The only question for decision is whether the nuisance is of such a kind as is contemplated by the Criminal Procedure Code. The second paragraph of sub­section (1) of section 105, which applies to this case, empowers the Police Magistrate to act under the provisions in question, when he considers " That any trade or occupation or the keeping of any goods or merchandise should by reason of its being injurious to the health or physical comfort of the community be suppressed or prohibited."

It is true that under this chapter the nuisance complained of must be of a public and not of a private kind, but I do not think that the distinction intended is exactly that between public  nuisances and

private   nuisance   as   generally   understood.       For   instance, it   is noticeable  that the passage  above  cited refers  to the  health    or physical comfort, not of the "public ", but of the " community ", while the word " public " is used in certain other paragraphs of this very sub-section.     I take it that " community " means here what it means in the Penal Code, which declares the word " public " to include " any class of the public or any community."   Again,  an instance of a nuisance given in another paragraph of the same sub­section is that of a building or tree likely to fall and thereby cause injury to persons " living or carrying on business in the neighbour­hood. "      Thus, a nuisance which affects only those living in the neighbourhood,  and not necessarily the public in general,  may be the  subject of proceedings  under  this  chapter.      Apart from  the scope of these particular provisions, the present case is, I think, an example of a public nuisance in the ordinary sense.    The meaning to be gathered from English authorities is thus stated in the Laws of England, vol. 21, p. 511: " A public nuisance is one which inflicts damage,  injury,  or inconvenience upon all the King's subjects,  or upon all those who come within the sphere of its operation. "   The evidence in this case shows that the whole neighbourhood is affected by the continuous noise of coopering   in   the   appellant's   oil   store. Moreover, as stated at page 508 of the same volume of the Laws of England, the interpretation of the word " nuisance " used in any statute is governed by the purpose and context of the statute, and it is shown that in the Public Health Acts, for instance, nuisances for the purpose of the provisions relating to methods of summary abatement are such as