P.N. Bakshi, J.
1. Idrisul Qadar was convicted by the Sub-Divisional Magistrate Gunnaur district Budaun on 17.7.1970 for an offence under Section 34 of the Police Act and sentenced to pay a fine of Rs. 50/-. In default of payment of fine, he was to undergo simple imprisonment for one month. He filed a revision before the Second Temporary Sessions Judge, Budaun, which was dismissed on 14.10.1970. He has now come to this Court in revision.
2. The case for the prosecution is that on 28.2.1969 Idrisul Qadar applicant dumped chopped portions of the carcass of Bara Janwar and its entrails including the remnants of stomach, skin and horns on the public road in front of the house of Ram Singh. It was objected to by Ram Singh, but the applicant did not listen to him when he said that it would hurt the feelings of the Hindu community. Ram Singh reported the matter at the police station Kotwali complaining that the act of the accused above mentioned had caused obstructions, inconvenience and annoyance. As the festivals of Holi and Bakrid were approaching an order under Section 144, Cr.P.C. had been promulgated in the city S.I. Bharat Singh immediately came to the spot to verify the facts mentioned by Ram Singh. On reaching the spot in question the Sub-Inspector found the entrails of the carcass lying as reported and he arrested the accused. After completion of investigation a charge sheet was submitted against the accused. Idrisul Qadar denied his guilt and alleged that he has been falsely implicated.
3. The prosecution in support of its case examined S.I. Bharat Singh and prosecution witnesses Ram Singh and Chunnilal. On a consideration of the evidence on the record the Magistrate came to the conclusion that the prosecution case had been fully established. He therefore, convicted the accused as above. The Sessions Judge in revision did not find any error or illegality in the findings recorded by the trial court. He, therefore, confirmed the conviction and the sentence imposed upon the applicant.
4. I have heard counsel for the parties. The only point argued before me is that in order to sustain a conviction under Section 34 of the Police Act it is necessary that the Act complained against, which is alleged to cause obstruction, inconvenience or annoyance, should have been committed in the presence of the police officer. It is urged that from the evidence on the record the most that can be said is that the applicant had thrown the remnants of the carcass in question on the public road much before the arrival of the Sub Inspector. The contention is that the Sub Inspector Bharat Singh came on the spot only after the report Ex. Ka. 7 was lodged at the police station by Ram Singh and the Sub Inspector has admitted that he did not personally see the accused dumping the rubbish on the public road. In m opinion this argument is misconceived.
5. The relevant portion of Section 34 of the Police Act runs as follows:
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 State Government, commits any of the following offences, to the obstruction, inconvenience, annoyance, risk, danger or damage of the residents or passenger; shall, on conviction before a Magistrate, be liable to a fine not exceeding fifty rupees, or to imprisonment with or without hard labour not exceeding eight days;
and it shall be lawful for any police-officer to take into custody without a warrant, any person who within his view commits any of such offences, namely: First- Any person who slaughters any cattle or cleans any carcass; any person who rides or drives any cattle recklessly or furiously, or trains or breaks any horse or other cattle:
6. A reading of the above section clearly shows that it is divisible into two portions. The first part relates to the commission of an offence on a public road or thoroughfare, which causes obstruction, inconvenience, annoyance, risk, danger or damage to the residents and passengers. The second part deals with the power of the police officer to take into custody without a warrant, any person who commits such an offence, provided the offence is being committed in his presence. There is nothing in the section to indicate that unless an offence under Section 34 of the Police Act is committed in the presence of the police officer, it would not be deemed to be an offence within the four corners of this section.
7. Counsel for the applicant has placed reliance on a number of cases in support of his submission. The first case cited by him is reported in AIR 1960 Assam 206. Mahendra Singh v. State. The facts of this case were that the Sub-Inspector of Police was on patrol duty when he received a report that some public nuisance was being created by several drunkards in the town area. He was told that those people after creating the disturbance had boarded a bus and were fleeing from the locality. On receiving this information the Sub-Inspector tried to follow these persons and ultimately he caught them near the gate of one Ratan Singh. He arrested the accused thereafter. The question for consideration in that case was whether the police officer within whose view the offence in question had not been committed, had the power to pursue the alleged accused, and to effect their arrest. The Assam High Court took the view that as the occurrence in question had not happened within the view of the police officer concerned, the said officer had no power to pursue the accused and to arrest them. The question involved in the present case is not one with regard to the power of the police officer to arrest the accused with respect to an offence contemplated under Section 34 Police Act which had not been committed in his view. It is nowhere laid down in this case that if the offence in question is not committed within the sight of the police officer, no such offence, as is contemplated under Section 34 of the Police Act, can ever be committed. Assuming that such a view has been expressed in that case, as argued by counsel for the applicant. I respectfully wish to disagree. It would reduce Section 34 of the Police Act to a nullity if the submission of the learned Counsel is accepted on this score. More often than not, when obstructions and nuisance are committed, a police officer is not present on the spot, but that does not mean that the annoyance or obstruction on the public thoroughfare would not be punishable under Section 34 of the Act merely due to the fact that the police officer did not view it personally. Section 34 of the Police Act which I have quoted above is very explicit. The police officer is empowered under this section to arrest the accused, without a warrant if he finds an offence under Section 34 of the Police Act being committed in his view, but this power cannot be stretched to mean that if an offence under this section is committed in the absence of the police officer, it would not amount to an offence under Section 34 of the Police Act.
8. The next case relied upon by the counsel for the applicant is reported in AIR 1947 Oudh. 132. S. Murtaza Ali v. Emperor. The facts of this case are that a shop-keeper had placed a chair and a bench in front of his shop presumably for the convenience of his customers. The police constable who was on duty, on seeing the bench on the roadside, reported the matter and the accused was thereupon prosecuted. It was held in this case that under Section 34 it is not only necessary that there should be some sort of obstruction on the road, but it must be proved that the obstruction was such as to cause inconvenience or danger to the public. It was also observed therein that in case of such an obstruction, it is the duty of the police under Section 31 in the first instance to require that offender to remove the obstruction and on his refusal such action as may be necessary should be taken. Here again, I have to observe that the facts and findings given in the present case before me are different to those involved in the case before the Oudh Court. In the present case, the facts are that the accused had thrown the rubbish on the public road in front of the house of Ram Singh, and this caused obstruction, inconvenience and annoyance to Ram Singh and the public. As mentioned already, three witnesses have been examined to prove this part of the case and the findings recorded thereon by the Courts below being findings of fact have to be accepted.
9. Two other cases are relied upon by the learned Counsel for the applicant in support of his submission. One of them is reported in : AIR1937Cal312 . Panchanon Kuthi v. Emperor and the Ors. is reported in AIR 1919 Pat 91 Ram Charitter Kahar v. Emperor. The facts of both these cases have no bearing at all with the point raised in the present case. I fail to understand how these cases could be of any assistance to support the submission made by counsel for the applicant.
10. I am. therefore, convinced in my mind that the prosecution has fully established its case and the accused applicant has committed an offence under Section 34 of the Police Act, as held by the courts below.
11. The sentence of one month's, simple imprisonment imposed upon the applicant in default of payment of fine is, however, illegal. Section 34 of the Police Act clearly lays down that an accused on conviction by a Magistrate shall be liable to a fine not exceeding Rs. 50/-, or to imprisonment not exceeding eight days. While, therefore, dismissing this revision, I modify the sentence imposed upon the accused in default of payment of fine of Rs. 50/ to eight days' simple imprisonment. The fine shall be paid within one month from today. The record shall be sent to the court below at once.