EMPEROR Vs. DHARMAPPA YELLAPPA SAMBRANI

JUDGEMENT

(1.) THIS is a reference made by the Sessions Judge of Dhar-war raising a question as to the construction of Clause (f) of Section 61(2) of the Bombay District Police Act, 1890. The facts are not in dispute. The accused was charged with obstruction in that he gave a caste dinner in the street outside his residence, a thing which he had been in the habit of doing in years past without any objection being raised. But on this occasion some people desired to pass along the road and were obstructed by the diners. Both the lower Courts held, rightly, that the act of the accused amounted to obstruction, but the question is whether it amounted to an obstruction prohibited by the Bombay District Police Act. Section 61 (1)(f), provides that : Whoever ... (f) causes obstruction in any street by allowing any animal or vehicle which has to be loaded or unloaded or to take up or set down passengers, to remain or stand therein longer than may be necessary for such purpose, or by leaving any vehicle standing or fastening any cattle therein, or using any part of a street as a halting-place for vehicles or cattle, or by leaving any box, bale, package or other thing whatsoever in or upon a street for an unreasonable length of time or contrary to any regulation made and published by the Magistrate of the district, by exposing anything for sale or setting out anything for sale in or upon any stall, booth, board, cask, basket or in any other way whatsoever causes obstruction, is guilty of an offence.

(2.) THERE are three possible constructions of that sub-section, one of which appealed to the learned Magistrate, who tried the case, the second of which appealed to the learned Sessions Judge, who made the reference, and the third of which my learned brother and I think to be the right construction. The first construction is that the clause should be read in three parts. What is forbidden is, first, certain types of obstruction not covered by any regulation of the District Magistrate, secondly, certain types of obstruction which are contrary to any regulation made and published by the District Magistrate, and, thirdly, obstruction caused in any other way whatsoever. The obstruction caused by the accused can fall only under these general words, and on this reading of the section such obstruction need not be contrary to a regulation made and published by the District Magistrate. This is the view adopted by the trial Magistrate. The learned Sessions Judge considered that the clause should be read in two parts, the first part dealing with certain specified obstructions not covered by any regulation made by the Magistrate, and the second part dealing with matters which are only obstructions if contrary to a regulation made and published by the District Magistrate, and that the second category includes not only exposing anything for sale etc. but also obstruction falling within the general words. The learned Judge considered that as obstruction caused by giving a dinner party in a public street is not prohibited by any regulation made by the District Magistrate, it does not amount to obstruction prohibited by Sub-clause (f). The difficulty in the way of both these constructions is that they pre-suppose that the District Magistrate possesses powers which under the Act he does not possess. The construction adopted by the learned trial Magistrate pre-supposes that the District Magistrate has power to make and publish a regulation relating to exposing anything for sale, etc. in a public street, and the construction adopted by the learned Sessions Judge pre-suppeses that the District Magistrate possesses not only that power, but also power to sanction other forms of obstruction. But when one looks at Section 39, which authorises the District Magistrate to make various orders, the only sub-clause which seems to deal with the obstruction of public streets is Sub-Clause (g) which reads prohibiting, except under such reasonable regulations as the Magistrate of the district may impose, the making of any excavation, the placing of building materials or other articles, or the fastening or detention of any horse or other animal in any street.

(3.) I agree.