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Queen-empress Vs. Byramji Edalji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Judge
Reported in(1888)ILR12Bom437
AppellantQueen-empress
RespondentByramji Edalji
Excerpt:
public nuisance - penal code (act xlv of 1860), sections 268 and, 290--annoyance to a particular religious sect--private nuisance. - - they complained to the magistrate that by this act the applicant 'had made the air offensive, and created an annoying sight. ' the magistrate has not found that the meat was in an offensive state, but he has convicted the applicant of committing a public nuisance, on the ground that he had done an act by which several persons, being jains, were much annoyed, it being a well-known fact, that they (the jains) have great repugnance to the killing of animals of every sort.1. in this case, the applicant has been found guilty of committing public nuisance, as defined in section 268 of the indian penal code, and has been punished under section 290.2. on the occasion of his giving a dinner-party, he cut up the meat that was to be cooked for the dinner in the verandah (otla) of his house, and so exposed it to the sight of persons passing along the road, among whom were some jains, whose temple is near the house. they complained to the magistrate that by this act the applicant 'had made the air offensive, and created an annoying sight.' the magistrate has not found that the meat was in an offensive state, but he has convicted the applicant of committing a public nuisance, on the ground that he had done an act by which several persons, being jains, were much.....
Judgment:

1. In this case, the applicant has been found guilty of committing public nuisance, as defined in Section 268 of the Indian Penal Code, and has been punished under Section 290.

2. On the occasion of his giving a dinner-party, he cut up the meat that was to be cooked for the dinner in the verandah (otla) of his house, and so exposed it to the sight of persons passing along the road, among whom were some Jains, whose temple is near the house. They complained to the Magistrate that by this act the applicant 'had made the air offensive, and created an annoying sight.' The Magistrate has not found that the meat was in an offensive state, but he has convicted the applicant of committing a public nuisance, on the ground that he had done an act by which several persons, being Jains, were much annoyed, it being a well-known fact, that they (the Jains) have great repugnance to the killing of animals of every sort.

3. Now it has been held that, in order to constitute a nuisance, there must be 'not merely a nominal, but such a sensible and real damage as a sensible person, * * * would find injurious'-Scott v. Firth 4 F. & F., 349 . In the present case, no real damage or injury is alleged to have been caused to the public or to the people in general dwelling in the vicinity, but merely an annoyance to those Jains alone who happened to pass along the road in front of the applicant's house at the time when the meat was being cut up or exposed there. If that was so, it was a case of private rather than of public nuisance, and, therefore, not one falling within the purview of the criminal law-The King v. Lloyd 4 Esp., 199 . The annoyance, moreover, such as it was, neither did nor could cause any sensible or real damage. It was an annoyance merely by reason of its hurting the feelings of the Jains, who have a repugnance to the killing of animals. It was thus of the nature of a sentimental grievance, which could be felt only by persons holding certain views as to the killing of animals.

4. In the case of Muttumira v. Queen-Empress I.L.R., 7 Mad., 590 it was held that Section 268 of the Penal Code was not intended to apply to acts and omissions calculated to offend the sentiments of a class, and that the placing of a Mahomedan symbol in the neghbourhood of a Hindu temple is not a public nuisance, though likely to cause serious annoyance to the Hindu public. In the present. case, we are also of opinion that the act of the applicant does, not constitute an offence punishable under Section 290 of the Indian Penal Code. We reverse the conviction and sentence, and direct that the fine be returned.


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