1. The Deputy Magistrate is wrong in supposing that an encroachment by a private person building over a portion of a public street is not a 'public nuisance' within the meaning of Section 268, Indian Penal Code, or that it is necessary for the prosecution in such a case to adduce evidence that any particular person was injured or obstructed by the encroachment. The public are entitled to the use of the full width of the public street, however wide it may be, and whoever builds over a portion of a public street does an a which must necessarily cause obstruction to persons who may have occasion to exercise their right of using the portion encroached upon. It is no answer to say that the street is still wide enough for all comers. Each and every part of a public street is open to lawful use by the public, and it is the duty of the public authorities to prevent encroachment thereon by private persons. The Deputy Magistrate is also wrong in saying that such an encroachment is a civil, not a criminal, matter. It is one of the large class of offences against the public which are dealt within Chapter XIV of the Indian Penal Code, and it is appropriately punishable under Section 290, Indian Penal Code. The Deputy Magistrate's strictures on the authorities for vindicating the rights, of the public against encroachments on the public streets are wholly out of place.
2. We set aside the acquittal by the Deputy Magistrate and direct him to restore the appeal to his file and dispose of it in accordance with law.