Full Judgment
Niamatullah, J.
1. These are three references made by the learned Sessions Judge, Azamgarh. The three applicants in revision are the lessees of certain houses or shops in Sardaha Bazar in the District of Azamgarh. The bazar is on either side of the road. The owners of the houses or shops occupied by the applicants built certain platforms in front of them. It does not appear when these platforms were built for the first time. There can be no doubt that the object of these platforms was to enable the shopkeepers to sit on them for selling their goods. The platforms are alleged to be encroachments on the public road, and therefore to amount to public nuisance within the meaning of Section 268, I.P.C. On the facts which do not appear to have been disputed, Section 290 has no application whatever. The act made penal by that section is a public nuisance not otherwise punishable by the Indian Penal Code. Section 268 defines public nuisance as an act or illegal omission which causes any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. Assuming that the platforms caused any common injury, danger or annoyance to the public or to the people in general, the persons who built the platforms are guilty of the act which exhypothesi amounts to a public nuisance. The applicants, who have merely rented the shops and sit on the platforms, cannot be considered to be doing any act amounting to a public nuisance. If the existence of the platforms is a public nuisance, it will be so, whether anyone sits on them or not. In my opinion, the applicants were not guilty of the offence with which they were charged. The applications are allowed. The conviction and the sentence of fine are set aside. The fines, if paid, shall be refunded.