1. This is a Reference made by the learned Sessions Judge of Gorakhpur, under Section 438 of the Code of Criminal Procedure, recommending that the conviction of one Kamla Prasad, under Section 290 of the Indian Penal Code, be set aside and the sentence of fine be remitted. The circumstances which gave rise to the prosecution of Kamla Prasad are as follows: Kamla Prasad is a karinda of the Rani of Gopalpur. A bazar is held at a place called Gola, which, it is said, is comprised in the zemindari of the Rani. In the afternoon of March 26th, 1912, the second officer of the Police Station of Gola was passing through the bazar on an ekka. He found a crowd in the bazar which intercepted his further progress. On dispersing the crowd, it was discovered that Kamla Prasad was sitting on a charpoy in the middle of the road, and there were two chairs, one on each side of the charpoy occupied by the friends of Kamla Prasad. On demand by the Sub-Inspector, the charpoy and the chairs were removed and the Sub-Inspector proceeded on his way in the ekka. Kamla Prasad was subsequently prosecuted under Section 290 of the Indian Penal Code on the charge of causing a public nuisance by keeping a charpoy in the middle of a road. Kamla Prasad denied the charge and pleaded that he was sitting at a place close by the shop of one Faqir Meah. The learned Magistrate, however, disbelieved Kamla Prasad and convicted him under Section 290 of the Indian Penal Code and sentenced him to pay a fine of Rs. 15. Kamla Prasad applied to the learned Sessions Judge of Gorakhpur for revision. The learned Judge has submitted the case to this Court, being of opinion that the conviction of Kamla Prasad was bad in law. It may be taken as proved in this case, that Kamla Prasad was sitting on a charpoy on the road in the bazar, but the question is whether this act fails under Section 290 of the Indian Penal Code; I agree with the learned Judge that the act of Kamla Prasad in placing a charpoy on the road in the bazar temporarily, did not amount to the offence of causing public nuisance. The learned Magistrate in his explanation has referred to three cases in support of his order. In re Umesh Chander Kar 14 C. 656; Queen-Empress v. Virappa Chetti 20 M. 433; Rex v. Lord Grosvenor (1819) 2 Starkie 511 : 20 R.R. 732. Those cases are not on all fours with the present case. In all those cases, the obstruction was of a permanent nature. As remarked by the learned Judge, it is a common thing in this country for persons to place their charpoys on the public roads without any intention of obstructing traffic. It is not quite clear from the record whether the passage of the ekka of the Sub-Inspector was obstructed by the crowd or by the charpoy of Kamla Prasad or by both. I, therefore, accept the Reference, set aside the conviction and sentence, and direct that the fine, if realised, be refunded.