1. This is an application for the revision of an order of the City Magistrate of Bareilly made under Section 133, Criminal P. C, forbidding the applicant to work the engine of his factory from 9 p. m. to 5 a.m. The learned Sessions Judge after considering 'the case fully has declined to interfere with the orders passed. The applicant owns a factory in the city, the engine of which it appears, makes a considerable noise, but the factory has been working for a number of years. A complaint was made in March 1930 and the evidence produced before the Magistrate showed that although the factory had been working for some years in a congested part of the town, new machinery had been added from time to time and especially an oil engine had been replaced by a 'steam engine within the last two years. The complaint alleged that the noise made by this engine amounted to a public nuisance within the meaning of Ch. 10, Criminal P. C, and the question before the Court was whether in the circumstances of the case it could be held to be 'injurious to the physical comfort of the community'. The Sessions Judge has come to certain findings which may be summarized as follows:
it is impossible for the complainant to sleep at night or to concentrate on his work during the day. The factory has been in existence for a good many years and it is difficult to see how the Courts can order the removal of a well-established factory merely because it is a nuisance to its neighbours. The noise of the engine may, when it is working fully, be a great nuisance to the neighbours but it cannot be said that the noise of the steam engine in these days of hideous noises is so intolerable as to make the life of the neighbours impossible.
2. Assuming as' I must do that these findings are correct, the question is whether the Magistrate was justified in interfering with the working of the engine under Section 133, Criminal P. C. It is not necessary to show that the noise made by the working of the engine is absolutely intolerable. The finding of the Sessions Judge is sufficient to show that it is a serious nuisance to the neighbours, and not only to the complainant. If it is a serious nuisance and if it is sufficient to prevent neighbours from sleeping at night and from concentrating on their work during the day, it must undoubtedly be held to be injurious to their physical comfort. The paragraph to which I have referred in Section 133, Criminal P. C, does not, it is true, mention the physical comfort of neighbours but the physical comfort of the community, and I have been asked on behalf of the opposite party to hold that the terms 'neighbours' and 'community' are for the purpose of this section interchangeable. Certain decisions have been pointed to, viz.: Krishna Mohan Banerji v. A.K. Guha  57 I.C. 829, Berckefeld v. Emperor  34 Cal. 73, Indra Nath Banerji v. Queen-Empress  25 Cal. 425, among others in which action has been taken under this section in somewhat similar circumstances, and in which so far as can be judged from the reports, the evidence related to the physical comfort of neighbours. Moreover it has been pointed out that Ch. 10 relates to 'public nuisance' and although the words in the paragraph are not the physical comfort of the public it would be very difficult to hold, after reading the whole of the section, that the legislature really intended to discriminate between the public and the community. In Section 268, I.P.C., a person is said to be guilty of a public nuisance:
Who does any act....which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity.
3. If the public nuisances referred in Ch. 10, Criminal P. C. are equivalent to the public nuisances denned in Section 268, I.P.C., the public and again 'people in general who dwell or occupy property in the vicinity', or in other words the neighbours, must be regarded as to all intents and purposes the same body of people. I can find no authority for distinguishing the meaning of the word 'community' (which according to the dictionary is a relative term) either from the public or the 'neighbours.' It is certainly curious that the word 'community' is used in para 3, Section 133, whereas references in other parts of the section are to the public or persons living or carrying on business in the neighbourhood, etc., but after considering the matter to the best of my ability I do not think that there is sufficient reason for making a definite distinction and for holding that a man may carry on a trade or occupation or keep goods or merchandise that is injurious to the health of physical comfort of his neighbours or of the public without becoming liable to an order under Section 133 merely on the ground that there may be some part of the community which is not affected.
4. Another point that has been taken in support of the application is that both the Magistrate and the Judge made a local inspection of the factory, but failed to record a memorandum of the relevant facts observed at the inspection in spite of the mandatory provisions of Section 539 (b), Criminal P. C. If there was a formal inspection under this section after due notice to both parties, as I understand there was, it was necessary to record the memorandum, and as none was recorded there was an irregularity in the proceedings. This however would not be sufficient to vitiate the whole of the proceedings unless it occasioned a failure of justice by prejudicing the accused. All that the Judge appears to have done was to go to the spot and observe the position of the factory. The Magistrate has given a full account of his inspection in the course of his judgment, and the mere tact that a separate note was not recorded can hardly have prejudiced the applicant who had a full opportunity of drawing attention to any inaccuracies in the Magistrate's description when he made his application to the Sessions Judge.
5. In these circumstances I do not think that there is any occasion for me to interfere with the orders passed. If the Magistrate could act under the section, as it seems to me he was justified in doing, no fault can be found with the nature of the order passed for regulating the conduct of the applicant's trade or occupation in such a way as to interfere as little as possible with the comfort of the neighbours. The application therefore fails and is dismissed.