1. This is a reference under Section 438 of the Criminal Procedure Code by the learned Sessions Judge of Jullundur, recommending that the conviction of the petitioner Parshan Lal under Section 34 of the Police Act, for which he has beensentenced to pay Rs. 20/- as fine, or in default to undergo simple imprisonment for two days be set aside.
2. The petitioner was prosecuted for parking two bicycles in front of his shop on the G. T. Road opposite the District Courts, Jullundur City. The learned Sessions Judge has found that there is no evidence to prove that the petitioner by parking the bicycles outside his shop on the G. T. Road had caused any inconvenience or annoyance to the public. I have perused the record and agree with this finding,
3. Section 34 of the Police Act, 1861, punishes several acts of nuisance or obstruction committed on a road, street, thoroughfare or open place. The petitioner's conviction has been recorded under clause third of that Section, which reads 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 passengers 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 : ... ... ... ... ... ... ... ... ... ... ... ... ...
Second :- ... ... ... ... ... ... ... ... ... ... ... ...
Third :- Any person who keeps any cattle or conveyance of any kind standing longer than is required for loading or unloading or for taking up or setting down passengers, or who leaves any conveyance in such a manner as to cause inconvenience or danger to the public.'
4. It is obvious that for conviction under this provision it is not sufficient merely to prove that a cattle or conveyance had been kept standing on a public road, place or thoroughfare for an unreasonable length of time, but the prosecution' has further to prove that the act complained of had caused obstruction and inconvenience, annoyance, risk, danger or damage. In some cases, the act complained of may be such from which an inference of annoyance, inconvenience or obstruction etc., can well be raised and no further evidence would be necessary to prove that the conduct attributed to the person complained against had resulted in inconvenience or annoyance or risk, but in other cases, evidence has to be adduced to prove that the act complained of had occasioned inconvenience, annoyance etc., to the residents or passengers.
5. The learned Sessions Judge has observed in his order of reference :-
'It is not the act complained against which is to determine whether it causes inconvenience or annoyance to the Public nor the opinion or the mind of the police officer in whose presence the act is committed, but it is the inconvenience and the annoyance to the general public which is to determine whether a person is guilty of an offence under Section 34 of the Police Act.'
6. I however, find myself unable to subscribe to this wide proposition that the nature of the act is not relevant in determining whether it had caused inconvenience or annoyance etc., to the public. In fact, in Gobind Ram v. Emperor, AIR 1930 Pat 246, upon which the learned Sessions Judge has relied, Adami, J., a member of the Division Bench deciding that case, held that the rule laid down in Ramcharitar Kahar v. Emperor, 51 Ind Cas 340 : (AIR 1919 Pat 91) was too wide, and observed :-
'Wherever an obstruction or a nuisance must by its nature cause inconvenience or obstruction under the Section, I would hold that there would be an offence under it. It is not necessary in every case to produce witnesses to say that they have been obstructed or annoyed; for instance, the mere act of committing a nuisance on a road by way of easing oneself is sufficient to bring the person so acting within the Section. In the same way, if a cart is left on the middle of a road, it must be held that it was causing an obstruction though it may be that no one comes forward to say that he was actually obstructed.'
7. The case before us is, however, not of that type in which an inference of obstruction or annoyance etc., can be raised from the very act itself. The cycles were lying in front of the petitioner's shop which abuts on a wide road. If the mere presence of a bicycle even at the farthest edge of the road is considered to be an obstruction, then even the stopping of a person on a road may become punishable under Section 34 of the Police Act, as it can well be said that every inch of the public road is meant for public use and a person who makes any portion of the road unavailable to the public causes obstruction.
8. In view of what has been said above, I setaside the conviction and sentence of the petitionerand acquit him. Fine, if paid, shall be refundedto him.