Prinsep and Ameer Ali, JJ.
1. In these cases the accused were charged under Sections 283 and 290, Indian Penal Code, that is to say, with doing an act which caused danger, obstruction or injury to any person in a public way, viz., a particular tidal khal; and secondly, with causing a public nuisance. They have been convicted of the first offence under Section 283 and have been sentenced to fine.
2. A rule was granted to consider the legality and propriety of the sentence.
3. We have considered the case on the evidence before us and on the arguments addressed to us by the learned Counsel on both sides. Mr. Kilby, who appears in support of the conviction, has cited the case of In the matter of the petition of Umesh Chandra Kar, I.L.R. 14 Cal. 656, as an authority for his contention that the mere fact of an encroachment on a tidal navigable river necessarily amounts to a public nuisance so as to render the person causing that obstruction liable to punishment under Section 290. We may, however, observe that in the case before us the conviction has not been under Section 290, but under Section 283, and that there is no evidence to show that the accused caused any danger, obstruction or injury to any particular person in any public way. The evidence taken merely shows that the accused put up a jag in this river, that the jag is about 45 cubits long and 20 cubits broad. It is however contended by Mr. Kilby, on the authority of the case already mentioned, that the conviction can be maintained under Section 290, since any encroachment on a navigable river must necessarily be an obstruction and so a public nuisance. We have given careful consideration to the case cited by him and numerous other cases of the English Courts bearing on the subject. On the facts of that particular case there can be little doubt that there was an obstruction. But with every respect for the learned Judges, and after the fullest consideration of the matter, we find ourselves unable to accept the general terms there laid down and indeed they were not necessary for the purposes of that case that any encroachment, however slight, on a tidal navigable river would constitute the offence of public nuisance so as to render the person making such encroachment punishable under Section 290 of the Indian Penal Code. It seems to us rather that there must be some evidence that such encroachment causes one of the results specified in Section 268. We may observe that there are circumstances well known to us in connection with large navigable Indian rivers which would render it desirable, if not absolutely necessary, to permit some encroachment from the banks for the protection of the property of private parties, such as the erection of spurs to prevent diluvion.
4. These have never, that we are aware of, been the cause of any criminal prosecution. This is mentioned only as an instance for showing that the strict application of such a rule is contrary to custom. We are further of opinion that some evidence is necessary; and lastly, that each case should be determined on its own merits, whether an obstruction has or has not been caused so as to come within the Penal Code. In the present cases, too, we find evidence for the defence which goes much further than the evidence for the prosecution (and this, as has already been mentioned, does not establish the case set up), and that is to the effect that there has been no obstruction to navigation by the acts of the petitioners; that although there may have been the erection of these particular jags, the jags nevertheless did not obstruct the ordinary navigation of the river; and further, that they were on the silted side of the river which, we may conclude, is not ordinarily used for the purposes of navigation. Under such circumstances the conviction and sentence must be set aside, and the fine, if paid, must be refunded.