032-SLLR-SLLR-1986-V-1-ELAL-JAYANTHA-v.-OFFICER-IN-CHARGE-POLICE-STATION-PANDURA.pdf
334
Sri Lanka Law Reports
[1986] 1 SriL.R.
ELAL JAYANTHAv.
OFFICER-IN-CHARGE, POLICE STATION, PANADURA
COURT OF APPEAL.
SENEVIRATNE. J. (PRESIDENT. C/A) 0ND JAYALATH. J.
C.A. 254/83-M.C. PANADURA No. 4&404.
SEPTEMBER 25. 1985.
Nuisance-S. 98 (1) (b), (98) (2) and 436 of Code of Criminal ProcedureAct-Procedure-Failure to follow correct Procedure-Irregularity causing no failureof justice (s. 436 of Code of Criminal Procedure Act).
On receiving a report by Police that appellant was committing a nuisance to theneighbours by working a metal crushing machine which emitted a deafening noise anddust carrying particles of metal thus creating a health hazard the Magistrate held aninquiry and made a finding that in fact a nuisance had been created.
Held –
Although the Magistrate correctly held that a nuisance was created the procedurehe followed was wrong.
The correct procedure would have been for the Magistrate, after satisfying himselfof the facts or upon such evidence as he thinks fit to admit, to make a conditional orderrequiring the removal of the obstruction or nuisance. Thereafter it would be open to theparty against whom the conditional order had been made to move the Court to have theorder set aside or modified.
Although the correct procedure had not been followed yet no substantial prejudicehad been caused nor a failure of justice occasioned. Further four years had elapsed andsending the case back would cause hardship.
Magistrates should adhere to the provisions of the Code and not deliberatelydisregard them.
APPEAL from judgment of the Magistrate of Panadura.
Accused-appellant not present – not represented.Anura B. Meddegoda, S.C. for Attorney-General.
Cur. adv. vult.
CA
Elal Jayartha v. O.I.C., Panadura Police
335
October 18, 1985.
SENEVIRATNE, J. (President, C/A)
The Officer-in-Charge, Police Station. Panadura filed a report in theMagistrate's Court, Panadura on 27.7.81 informing the Court that-
(1) One Mantri Vithanalage Beatrice Silva, a witness in this casecomplained to the police that from 22.7.81 the respondent tothe report Garbage Don Elal Jayaatha was working a stonemetal crushing machine which creared a public nuisance.
On this complaint the police made inquiries and found that theworking of this metal crushing machine "was injurious to the healthand physical comfort of the community", and moved Court to issue anOrder prohibiting the respondent from creating this nuisance. On thisreport the learned Magistrate issued notices on both respondentBeatrice Silva, the virtual complainant, and the respondent to thereport Garbage Don Elal Jayantha. It appears that the respondentevaded summons for some time and warrant was issued against him.Ultimately both parties on whom notices were issued were present inCourt on 9.6.82, and the learned Magistrate fixed the matter forinquiry. At this stage I must note that the journal entries describedboth Beatrice Silva and Elal Jayantha as accused. In any case BeatriceSilva cannot be an accused in respect of this report, and Elal Jayanthacannot also be an accused, and should have been best described asthe respondent as the report filed by the police came within the termsof section 98(1 ){b) of the Code of Criminal Procedure Act No. 1 5 of1979.
After the matter was fixed for inquiry the learned Magistrateproceeded to hear same as an inter partes trial in which there weretwo parties, the virtual complainant Beatrice Silva and the respondent(called the accused) Elal Jayantha. Several witnesses gave evidence tosubstantiate the complaint of the nuisance. The respondent did notgive evidence, but led the evidence of several witnesses to rebut thepolice case that he was creating a nuisance.
After hearing evidence of both sides the learned Magistrate properlydirected himself by stating that in respect of this report filed by thepolice he had firstly to decide whether the respondent Jayantha wascreating a public nuisance, and whether his acts were "injurious to thehealth or the physical comfort of the community". The learnedMagistrate on the material before him quite correctly found that the
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11986J i Sri LR.
respondent was creating a public nuisance, and further that the actcommitted by him. the working of this metal crushing machine whichcreated a deafening noise and emitted dust carrying pieces of metalwas injurious to the health of the public and to their physical comfort.The public who were affected, the learned Magistrate holds weretho'se living as immediate neighbours in relation to the spot at whichthis 'machine worked. In addition to this evidence there was also theevidence that the machine was operated without obtaining a licencefrom the local authority, anflhhat even the Medical Officer of Health ofthe area had informed the Local Authority that the working of thismachine should be stopped. The Court agrees with the finding of thelearned Magistrate that this was an instance in which section98(1 ){b). Code of Criminal Procedure Act applied, and order shouldbe made to remove the nuisance.
There is one glaring defect in those proceedings, which defect theMagistrate himself was aware as set out in his Order, and which theMagistrate chose to deliberately ignore. The procedure adopted.forhearing this report filed by the police contravened the provisions ofChap. IX, Code of Criminal Procedure Act No. 1 5 of 1979.
Section 98(1) in as follows –
"Whenever a Magistrate considers on receiving a report or otherinformation and on taking such evidence (if any) as he thinks fit —
that any trade …. injurious to the health or physicalcomfort of the community be suppressed or removed orprohibited."
"Such Magistrate may make a conditional order requiring theperson causing such obstruction or nuisance to remove suchobstruction or nuisance".
Thus, it is quite clear that the Chap. IX, under which this report wasmade to Court required the Magistrate to preliminarily satisfy himself interms of section 98(1) of the Code, and then to make a conditionalorder. After such conditional order is made section 98(2) operates,which section is as follows
"Any person against whom a conditional order has been madeunder subsection (1) may appear before the Magistrate … andmove to have the order set aside or modified in manner hereinafterprovided"
CAElalJayantha v. O.I.C.. Paoadura Police (Seneviratne. J.)337
It is quite clear that the learned Magistrate did not consciously adoptthis procedure. In the first paragraph of the learned Magistrate's Orderdated 25.4.1 983, it is stated as follows:-*.
‘•oOoJOj sen®cr(©0 oca
co^OidcJO ©CbOfij a® ©oiSmaO g£>©e>d S)p, $0)0©® Dfisi cad® £<; odd©«6 Oge5<j®jD<5«6c3 Q doj d® ®(3®§Jc f©e$©dQO<$& Ocb® oogjasd 98( 1) (<ji)DcnsJ&o
<ytg£) &®c3iaoeria>d® ®(°ad <?C}Q 3b OScrf ©S>c?Gti£:>®£ ®e»zri(s<fi
o6>ts> &©oi®c3ea ®®)®a»D ®Q®D od© 0®)® ®a»0 ftdeft© ©5®0 cr<;©d ©d®"
This paragraph cited above shows that the learned Magistrate hasdeliberately overlooked and contravened section 98 (-1) and 101(1) ofthe Code. These provisions are skin to an interlocutory order issued ina like instance in civil procedure.- ■
The question now is whether due to this irregularity of procedurethese proceedings should be allowed to stand. Learned State Counselsubmitted that the proceedings should stand as no prejudicewhatsoever has been caused to the respondent-appellant, that in facthe had been benefited by the nature of these proceedings. Therespondent-appellant has neither complained in the Magistrate'sCourt nor in his petition of appeal regarding.the procedure adopted atthe inquiry, contravening the provisions of Chap. IX of the Code.
In this instance I have carefully considered whether the proceedingsshould be quashed in view of this irregularity in the proceedings. Thereport of the police complained about a public nuisance caused in July1981. Thus, over 4 years have now passed since this public nuisancewas created. The fact that this Court is considering the regularity ofthe proceedings 4 years after the proceedings began must be takeninto consideration in deciding whether to quash the proceedings.Further, in this instance, there is overwhelming evidence that a publicnuisance was created, and even if the proceedings are quashed, inview of the material before Court, this Court will have to order a freshinquiry. Due to' these considerations while asserting that theproceedings.are grossly irregular, in this particular instance the Courtis not quashing th# proceedings as the irregularity has not occasioneda failure of justice – 436 of the Code of Criminal Procedure Act. Thisruling is given only on the facts and circumstances of this particularcase, and should not be considered as a licence to Magistrates toboldly disregard the procedural provisions of the Code of CriminalProcedure Act.
JAYALATH, J. – I agree.
Appeal dismissed.