1. This is an application in revision against an order of a Magistrate of the First Class of Cawnpore made under Section 133 of the Criminal Procedure Code, which was upheld by the learned Sessions Judge.
2. A katcha public road takes off from the Grand Trunk Road near the village of Sachendi and passes through it. At this part there are houses on both sides of the road.
3. Outside the house of Ajudhia Prasad and Gokul there is an ancient tamarind tree, one branch of which overhangs the road and forms an arch over it, and the end of the branch almost rests on some houses on the other side, which, however, are described as in ruins and unoccupied. It is an old tree and has stood firm for very many 'years and has not caused any inconvenience or apprehension of danger to anybody.
4. During the Muharram of 1923 for the first time, some Muhammadans had occasion to complain of this branch. They had built a Tazia unusually high and carried it aloft in the usual fashion, and found it could not pass under this branch. They refused to lower it or to tilt it on to one side and demanded the removal of the branch. A breach of the peace seemed imminent but the Sub-Inspector of Sachendi fortunately was able to find a way out of the difficulty. But as he feared that there might be a recurrence of trouble on some future occasion when Tazias were taken that way, he took action under Section 133 of the Code of Criminal Procedure. It may be noted that in the past on no occasion had the carrying of the Tazias been interfered with by this tree. The learned Magistrate has found that 'taking into consideration all the circumstances I am of opinion that the branch in question is a sufficient obstruction to the free use of the public road and there is likelihood of its falling down and causing injury to the public.'
5. The facts are quite clear. The branch of the tree is 151/2 feet above the level of the road. It seems to me that an obstruction at that height over this country road, having regard to the normal traffic, cannot be called an unlawful obstruction within the meaning of the section.
6. There remains the other consideration,-i. e., whether the branch is a danger to the public.
7. The Magistrate says that the overhanging branch is very thick and that the weight of twigs at the end has to be taken into consideration for determining whether there is any likelihood of its breaking. Evidence was given by a Forest Ranger who was of opinion that there was no likelihood of the branch falling. He said it was vigorous, firm and solid. The Magistrate has accepted that evidence but goes on to say 'it is very likely that on account of these factors (i. e. the age of the tree and the weight of its foliage) it may not withstand a heavy storm or gale. If it falls it is bound to endanger human life'.
8. I take this finding to mean that at the present time, and at normal times, there is no likelihood of this branch falling, but that it is possible that at some time or other in the future there may be a gale of sufficient violence to cause it to fall. This argument would apply to every tree.
9. I think that the section deals with the condition of things at the time when the inquiry was held. If at such a time a house or branch of a tree is likely to fall and thereby endanger the life of passers-by, no doubt, action under the section is justified, but I do not think it is meant to apply to what may happen at some indefinite time in the future or under quite abnormal circumstances. It might just as logically be said that half the houses in Allahabad city should be pulled down now because at some time in the future there may be an earthquake of the intensity which unfortunately recently desolated Japan.
10. But even if the Magistrate was justified in holding that this branch was likely at some time or other to fall and endanger life, it seems to me that it was not necessary for him to go the extreme length of ordering it to be cut down. A tamarind tree is an object of veneration to many Hindus, and the safety of the public, which after all is what is contemplated by the section, would have been adequately secured if the Magistrate had ordered proper support to be given so as to prevent the branch from falling. It is open to him to pass such orders if he still thinks there is any necessity for it. In my opinion the order as it stands must be discharged and it is discharged accordingly.