1. This is a reference by the Sessions Judge of Shahjahanpur. The District Magistrate at Shahjahanpur has convicted three persons, prostitutes, of an offence which he considered they have committed under Section 290 of the Indian Penal Code. The evidence against them shows that all three came out on to a public road, and, thinking that a Reserve Inspector of Police, who was passing by, was a soldier, called out to him and solicited him to go back with them. The District Judge before whom the case was taken in an application in criminal revision was doubtful whether an annoyance caused in a public place to a single person could be brought under the definition of a public nuisance, on the ground that it might have been any member of the public to whom the annoyance was caused. He has accordingly submitted the case to this Court under Section 438 of the Code of Criminal Procedure. Section 290 renders punishable what are known as public nuisances in the Indian Penal Code. The definition of public nuisance is to be found in Section 268. A person is guilty of a public nuisance when (omitting that part of the section which does not refer to the present case) he does an act which must necessarily cause annoyance to persons who may have occasion to use any public right. Acts of a similar kind, and more particularly the act of loitering or importuning for the purpose of prostitution, can be provided against in Cantonments by the Cantonments Act of 1889. Further, a Municipal Board may, under Act “No. XV of 1883, make rules for prohibiting, preventing, and punishing such acts within the Municipality as may, in the opinion of the Board, cause, or tend to cause, annoyance to persons who have occasion to use a public right. The language used in Act No. XV of 1883 at once shows the difference between the powers given to a Municipal Board and the powers given to Magistrates under Section 290 of the Indian Penal Code. In the latter case the act done is only punishable when it is an act which must necessarily cause annoyance to persons who have occasion to use any public right. We are not at the present moment considering acts or omissions which are the cause of common injury, danger, or annoyance to the public, or to the people in general, who dwell or occupy property in the vicinity. The difficulty in the present case lies in the words “must necessarily” which occur in Section 268. The Magistrate was satisfied that in the present case annoyance was caused, at least so we learn from the remarks which he has sent up to this Court along with the reference, and there can be no doubt that annoyance is frequently caused by acts of this kind. We are not satisfied that the act of the women in this case was one which must necessarily have caused annoyance. If the act, of which these women were found guilty, was an act entirely without a remedy, it might be necessary to call attention to the absence of all remedy. All that need be done in the present case is to say that the Sessions Judge is so far right when he says that the act does not fall within Section 290 of the Indian Penal Code. The conviction will have to be set aside, and the fines, if paid, be refunded to the person or persons who paid them.
2. I am of the same opinion. In my judgment persons who are exercising the right of passing along a public road ought to be protected from being importuned for the purpose of prostitution. Within the limits of Cantonments such protection may be afforded by rules framed under Section 26, Clause 23, of the Cantonments Act of 1889; similarly within the limits of Municipalities, protection may be afforded by rules framed by Municipal Boards under the provisions of Section 55, Clause 1, of Act No. XV of 1883. But the sole question we have to deal with now is, whether the conduct of petitioners amounted to a public nuisance as defined in Section 268 of the Indian Penal Code. I entirely concur with my learned brother in holding that it did not. The conviction and sentence must therefore be set aside.