R.N. Misra, J.
1. The two petitioners have been convicted under Section 290 of the Indian Penal Code by the learned Subdivisional Magistrate of Cuttack and each of them has been sentenced to pay a fine of Rs. 25/- or in default suffer simple imprisonment for week days.
2. The Police sent up prosecution against the accused persons on the basis of a station Diary entry lodged by a constable deputed from the Sadar Police Station of Cuttack on duty to the Barang area. It was alleged that on 30th of September, 1970, two constables while patrolling : the area on duty found that the accused persons had tied their cattle on the public road. The cattle had by urinating made the public road muddy. Thereby general public had been inconvenienced in using the way. It is stated that ten days after the Assistant Sub-Inspector of Police attached to the Barang out-post visited the spot and found that the public road was really muddy on ac-count of the cattle being tied. The accused denied the allegations of the prosecution case in their statement under Section 342 of the Code of Criminal Procedure.
3. Two of the police constables are the only witnesses in support of the prosecution case. According to P. W. 1, he was attached as a constable to the Barang Out-post in September, 1970. During that night, he along with P. W, 2 another constable was engaged in patrol duty of Kantapatna village. He found that the accused persons had tied their cattle on the village danda and thereby had caused obstruction to the public as also traffic, The cattle by urinating on the village danda had made it muddy. The passers-by were inconvenienced in the use of the village danda. P. W. 2 has supported P. W. 1 in all material particulars.
4. A bare reading of the judgment of the learned Magistrate shows that he lacks a sense of proportion. There are cases which require examination of points raised therein from various aspects both factual and legal. There are other cases which do not require much of consideration or deliberation and time if unduly devoted to such matters turns out to be wastage of energy as also public time. Here is an instance where by unnecessarily examining certain aspects of the matter which did not require consideration, the learned Magistrate has come to a conclusion which is very difficult to be sustained.
5. As I have already stated, it was a village path. There is no Indian village where the danda is not used for the purpose of tying cattle. The danda is not a public road in the strict sense though according to definition in law it would turn out to be so. Essentially it is meant for the villagers to use. In the village in question there was no need for any traffic to pass. In the absence of any evidence it is open to one to conjecture that bullock carts might occasionally be passing on the danda. Obviously mud in the danda caused by urination of cows would not prevent use of the danda for passing of bullock carts nor would any villager feel affected by urination of cattle in the danda. Obviously the two constables were sophisticated enough and were not used to the rural atmosphere of India and, therefore, while walking at night on the 30th of September, 1970, were seriously affected when they found that cattle had been tied on the danda and had urinated there as a result whereof there had been some mud. The learned magistrate seems to have lost sight of the Indian surroundings and environments when he sat to dispose of this case. The conclusion reached by the learned Magistrate is so shocking to common sense that I have found it difficult to maintain the conviction though taking a strict view of law, it is possible to say that an offence answering the definition given in the Indian Penal Code under Section 290, may be taken to have really been committed. A magistrate is given the duty of deciding a case taking all aspects into consideration and he is not expected to dispose of the case overlooking the environment, circumstances, surroundings and other features which really have a flood of light to throw on the case. I must conclude by saying that the learned Magistrate has given a demonstration of lack of common sense in disposing of this case,
6. I would accordingly allow the revision, acquit the petitioners, set aside the fine and in case the fine has been paid direct it to be refunded. A copy of this judgment may be forwarded to the Inspector General of Police, Orissa, in order that he may be in a position to notice the attitude of his police officers.