JUDGMENT
Cuming, J.
1. This rule has been issued on two grounds : first of all that the conviction and sentence are bad in law inasmuch as the mandatory provisions of Section 342, Criminal P.C., were not, followed, and secondly that the facts, do not constitute an offence under Section 341, I.P.C., inasmuch as among others, the complainant had no right to use the rain water passage as a urinal. The petitioner has been convicted under Section 341, I.P.C., for wrongfully restraining the complainant from going to a certain urinal. The complainant is apparently a tenant of the petitioner and they have fallen out. The complainant’s case was that he was not allowed to go to a certain urinal in the house. The learned Magistrate has come to no finding as to whether the complainant had any right whatever to use the aforesaid urinal. This urinal apparently consisted of a couple of bricks put over a rain water pipe. In order to hold the petitioner guilty under Section 341, I.P.C., it would be necessary to determine that the complainant had a right to use the urinal. That the Magistrate has not done. Therefore there is no alternative but to set aside the conviction and sentence and to send the case back for retrial. The retrial should be held by some Magistrate other than Mr. Rustomji. The Magistrate trying the case should bear in mind the point I have stated above.
2. The rule is made absolute in these terms.
