1. This is a petition for revision of an order of a learned Presidency Magistrate convicting the petitioner under Section 341, Penal Code and sentencing her to pay a fine of Bs. 180 or in default two months' simple imprisonment.
2. The complainant was a tenant of certain premises and he had sub-let the first floor and a small room on the second floor to the petitioner, It appears that there was a staircase from the ground floor to the- first floor and then on to the root upon which the second floor room stood. The charge against the petitioner was that she bad placed a door across the stair way making it impossible for the tenants of the ground-floor to go on to the roof.
3. Three persona were prosecuted, namely, the petitioner who was a kept woman, the man who kept her and a servant. The petitioner only was convicted and there seems to be practically no evidence that she was the person who caused this door to be placed to block the staircase. Even assuming that it was established that the petitioner caused this door to be placed, I am not satisfied that the evidence proves an offence under Section 341, Penal Code.
4. Merely blocking a way does not necessarily involve an offence under Section 341, Penal Code. Before the petitioner could be convicted the Court would have to be satisfied upon evidence either that this staircase formed no part of the petitioner's tenancy or in the alternative if it did form part of her tenancy, persons living on the ground floor had an easement over this staircase to get on to the roof.
5. All that the evidence amounts to is the fact that certain persons interested in the ground floor said that they used this staircase to go on the roof. Did they go on to the roof as of right or were they merely permitted to go on to the roof If they went as of right then of course this staircase could not be blocked. But if the staircase formed part of the tenancy of the petitioner and the petitioner allowed persons to go on to the roof, that would not give them a right to go on to the roof. These are matters which have not been considered at all. It appears that all that is necessary to obtain a conviction under Section 341, Penal Code before some Magistrates in Calcutta is merely to show that somebody has been prevented from going somewhere. The person preventing him may have every right to prevent him; but that does not seem to be a matter which is considered at all.
6. Quite obviously, the dispute in this case is a civil one as to the right of the ground-floor tenant to use the staircase at all and the matter could only be satisfactorily decided if a suit was brought for damages and a mandatory injunction calling upon the petitioner to remove this door. In such a suit, the petitioner could well justify her action by showing that the staircase formed part of her tenancy and that no one had a right to use it. In all the circumstances I am not satisfied that all the elements necessary to maintain a conviction under Section 341, Penal Code were present in this case, and that being so this petition must be allowed and the conviction and sentence set aside.
7. The rule is made absolute and I direct that the fine if paid must be refunded forthwith.