Banerjee and Wilkins, JJ.
1. We think the view taken by the learned Sessions Judge in this case is in the main correct. The accused has been convicted by the Sub-Divisional Magistrate of Serajgunge of an offence punishable under Section 283 of the Indian Penal Code and sentenced to pay a fine of Rs. 50, and he has been ordered to remove within three days the obstruction complained of. But all that the learned Magistrate in his judgment has found against the accused is that he has blocked up altogether by a gate a road which, in his opinion, is a public road. This finding is not in our opinion sufficient to sustain the conviction. To warrant a conviction under Section 283 of the Indian Penal Code for causing obstruction in a public way, it must be established that the act of the accused has caused 'danger, obstruction, or injury ' to some person; see Empress v. Ram Singh (1882) 11 C. L. R. 462 and Queen v. Khader Moidin (1881) I.L.R. 4 Mad. 235. But there is no finding to that effect in the judgment of the Magistrate. Then, again, though the learned Magistrate in effect finds that the road in question is a public road, what the evidence shows is, to quote the words of the judgment, that a road passed by the west of the accused's house which he first blocked up by building a house on it, and then deviating it over his bari blocked up altogether by a gate.' The four witnesses examined for the prosecution all say, either expressly or in effect, that the road which has been obstructed is not the old road but the road passing through the bahirbari, or the compsund of the outer house of the accused, which the accused opened after having closed the old road by building his house over it. The evidence leaves it very doubtful whether the way is a public way within the meaning of Section 283 of the Indian Penal Code.
2. For these reasons we set aside the conviction and sentence and the order for removal of the obstruction complained of, and direct that the fine, if realized, be refunded.