1. The complaint against the accused was they 'let out sewage water to run into the street.'
2. By Section 222 of the District Municipalities Act every owner or occupier, who allows the water of any sink, drain or privy, or the drainage from any stable or place, or any other offensive liquid matter belonging to him or being on his land or in his building or in any building or land occupied by him to run down on or to be put upon, any street or into any drain in or alongside of any street, except in such a manner as shall prevent any avoidable nuisance from any such liquid or offensive matter soaking into the walls or ground at the side of the said drain, shall be liable to a fine of Rs. 10.
3. The first witness deposed that the accused had let 'stagnant water' run into the street (presumably the word stagnant is a clerical error or misdescription for 'sewage') and that such water could not be kept inside the house. The Bench of Magistrates did not record any finding upon the facts, but dismissed the prosecution on the ground that the Municipality had not provided drains, and that it was not possible for poor people to provide places for their stagnant water.
4. It appears to me that the ground of decision is based on an error in law. The Legislature has not made the providing of drains by the Municipality a condition precedent to the obligation imposed upon the owner or occupier. The words 'except in such a manner as shall prevent any avoidable nuisance from any such liquid or offensive matter soaking into the walls or ground at the side of the said drain' seem to be limited to the case in which the owner or occupier permits such water to be 'put into any drain in or alongside of any street,' and that the Section also makes punishable any owner or occupier who allows such water to run down on, or to be put upon any street.
5. The Section is awkwardly worded, but it seems to contemplate two classes of cases, in one of which the street is not provided with drains, and in the other of which such provision has been made. In the latter case it was intended to secure that the offensive water should actually pass into the drain, and not be allowed to soak into the walls or ground at the side of the drain.
6. As the Bench has dismissed the prosecution upon an erroneous ground, and without recording any finding as to whether or not the accused have allowed sewage water to run into the street, I would set aside the acquittals and direct that the case be retried.
7. There was no finding by the Bench as to whether the stagnant water which the accused are charged with having allowed to flow into the street was 'the water of a sink, drain or privy, or the drainage from any stable or place, or any other offensive liquid matter.' The acquittal on the ground that the Municipality has not provided drains was erroneous. The Municipality are not bound to make drains, whereas every owner or occupier is bound to keep his offensive liquid matter from running into the street. If drains are provided, the owner or occupier may apparently discharge offensive liquid matter into them, provided that in so doing he avoids causing a nuisance by allowing such liquid matter to soak into the walls or ground.
8. The acquittal must be set aside and the cases retried.