K T HING Vs. INSILAS

JUDGEMENT

(1.) The petitioner is one of the proprietors of the Chinese Theatre Studio on Chittaranjan Avenue. He has been convicted under Section 290, I.P.C., of committing a public nuisance by the annoyance caused by the sounds made by his theatre band, in connexion with performances at the theatre from 12 noon to 4 p. m. and 8 p. m. to midnight every day.

(2.) The only ground for revision seriously urged is that the prosecution has failed to prove the existence of a public nuisance inasmuch as it has not been shown that annoyance has been caused to the public or to the people in general who dwell or occupy property in the vicinity in accordance with the terms of Section 268, I.P.C. defining "public nuisance." On this point the finding of the learned Chief Presidency Magistrate is as follows: It is suggested that this is not a public but a private nuisance. Some Mahomedans have bean called by the complainant to help him over the difficulty. I doubt if their grievance is very genuine. I imagine they are less susceptible to noise. But, in the peculiar circumstances of this case, as shown by the plans, the complainant and his tenants, represent substantially the public in general who dwell and occupy property in the vicinity. The complainant's house is at present the only substantially inhabited property in the neighborhood. The rest is mostly open space, or covered by small huts. If these were occupied by buildings inhabited by people who would say they did not mind the noise (e.g., Chinese) the matter might be different. But the accused has not called a single person living in the vicinity to contradict the evidence given by the prosecution.

(3.) The learned Magistrate finds that: partly owing to the proximity of the theatre to the complainant's building and partly owing to the unusual nature of the sounds which constitute Chinese music, the complainant and his tenants have a genuine grievance.