SEN, J. - (1.) THIS rule was obtained by the petitioners against whom an order has been passed in proceedings under Section 133, Criminal P. C., by the Sub -Divisional Magistrate of Asansol directing the petitioners to refrain from working in icecream making machine between the hours of 11 P. M. and 5 A. M.
(2.) THE case against the petitioners briefly is as follows : The petitioners have a shop in certain premises where they make icecream. The icecream is made in a refrigerator. It is said that the noise created by the working of the refrigerator constitutes a public nuisance. The defence taken is that the noise made is not a public nuisance. The learned Magistrate, as I stated before, has passed an order restraining the petitioners from working this machine for a certain period, A motion was taken from this order to the Sessions Judge and he has confirmed it. The first point raised by learned advocate appearing for the petitioners is that the alleged nuisance, if it be a nuisance at all is not a public nuisance and therefore proceedings under Section 138, Criminal P. C., to abate the nuisance are not permissible. His contention is that proceedings under Section 133, Criminal P. C., relate to public nuisance and not to private nuisance. Next, he points out that the finding of the learned Magistrate is not sufficient to show that the petitioners are creating a public nuisance.
(3.) LEARNED advocate appearing for the State contends that the evidence discloses that a number of persons occupying the other portion of the premises where this business is carried on are disturbed by the noise and that therefore the Court below was right in holding that there was a public nuisance.;