Ram Charitar Kahar vs Emperor

Das, J.—This application is directed against an order of the Additional District Magistrate of Patna convicting the petitioner u/s 34 of the Police Act and sentencing him to pay a fine of Rs. 2. The petitioner was, in the first instance, tried for an offence u/s 34 of the Bye-Laws of the Patna Administration Committee and was convicted under that section by a Deputy Magistrate and was sentenced to pay a fine of Rs. 2. There was an appeal to the Court of the Additional District Magistrate of Patna, who, in view of the fact that sanction had not been obtained for trying the petitioner u/s 34 of the Bye-Laws of the Patna Administration Committee, set aside the conviction under that section, but convicted him, as I have stated, u/s 34 of the Police Act and imposed a fine of Rs. 2 on the petitioner.

Section 34 of the Police Act provides that "Any person who, on any road or in any open place or street or thoroughfare within the limits of any town to which this section shall be specially extended by the Local Government, commits any of the following offences, to the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers shall, on conviction, before a Magistrate, be liable to a fine...." The offence of which the petitioner has been convicted is set out in the seventh clause of section 34, which runs as follows:--"Any person who willfully and indecently exposes his person, or any offensive deformity or disease, or commits nuisance by easing himself, or by bathing or washing in any tank or reservoir not being a place set apart for that purpose." It will be noticed, therefore, that before a person can be convicted u/s 34 of the Police Act, it must be established that the act complained of was to the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers. It is not suggested that the act complained of was to the obstruction, inconvenience, risk, danger or damage of any person, but it is suggested by the judgment of the learned Additional Magistrate that it was presumably to the annoyance of the residents or passengers. There is absolutely no evidence on the record that the act complained of was to the annoyance of the residents or passengers, nor, as I read the judgment of the Additional District Magistrate, does be say that there is any evidence on the record to that effect; but be cornea to the conclusion that the act having been proved, it must have been to the annoyance of the passengers. I cannot assent to the proposition that we are at liberty to assume the existence of that which the Legislature says is an essential ingredient of an offence. It is not without some reason that the Legislature has laid down certain conditions precedent for a conviction u/s 34, and it seems to me that if the learned Additional District Magistrate''s view of law be correct, then the following words appearing in the section, "to the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passenger?," are purely ornamental and therefore wholly unnecessary for the purpose of legislation. I hold that unless it is proved that the act complained of was to the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passengers, there cannot be a conviction u/s 34 of the Police Act. There is absolutely no evidence on the record to show that there was any resident or passenger present at the time when the act complained of took place, nor that it took place within sight of any resident or passenger nor that any annoyance was caused to any resident or passenger. It is also very doubtful if the place where the act complained of took place is visible from the public road as the two witnesses called by the prosecution contradict each other on this point. In my view, therefore, the conviction u/s 34 of the Police Act cannot he sustained. In view of this finding, it in unnecessary to consider the other points that have been argued by Mr. Hasan Imam. I would set aside the conviction and sentence passed on the petitioner and direct that the fine, if paid, be refunded.