The act of passing urine in a public place does not constitute a public nuisance under Section 290, I.P.C. unless it causes common injury, danger, or annoyance to the public.

Pandrang Row, J.

1. The petitioner in this case was convicted of a public nuisance, and sentenced Under Section 290, I.P.C., by the Stationary Sub-Magistrate of Chingleput to pay a fine of Rs. 10 and in default of payment, to undergo simple imprisonment for one week. This conviction and sentence were confirmed by the joint Magistrate of Chingleput. The alleged public nuisance was that the petitioner, a respectable man of 55 years, passed urine in a grazing ground poramboke under cover of a tamarind tree in the village of Guduvancheri to which the Towns Nuisances Act does not apply. If the view taken by the Courts below is to be accepted as correct, it would follow that the mere act of passing urine in any public place, in the sense of a place open to the public, would amount to an offence punishable Under Section 290, I.P.C. The essential ingredient of the offence is that the act must cause any common injury, danger or annoyance to the public or to the people in general who dwell or occupy property in the vicinity, or must necessarily cause injury, obstruction, danger or annoyance to persons who may have occasion to use any public right. There is no question of obstruction or danger or injury in this case and the only question of danger is whether there was anoyance caused to the public or whether the act was one which must necessarily cause annoyance to the public.

2. The public which one must have in view is the general public, that is to say, in this case the villagers and not an individual of particularly refined susceptibilities. It is common knowledge that in most of the villages (including the village of Guduvancheri) there are no public latrines or urinals and it is the usual practice for men to pass urine in public places of course without any indecent exposure. And such an act does not cause any annoyance; to villagers in general. It may be that the act is likely to cause annoyance to others not inured to such sights; much familiarity has dulled the susceptibilities of people living in villages and in this country generally, and no actual annoyance is likely to be caused to villagers by such an act. It is not likely that the petitioner in this case who is, as I have already observed, a respectable man of 55 years, would have made any indecent exposure of his person while performing the act, and I am unable to agree with the learned Magistrates observation that he fails to see how a man is to perform the act of passing urine without committing some sort of exposure if by exposure is meant indecent exposure. It may be as, the learned joint Magistrate says, the habit of promiscuous urination is opposed to the interests of public health, decency and morals, but that would not by itself be sufficient to constitute it a crime in tracts to which the Towns Nuisances Act has not been applied.

3. The learned Magistrate seems to have thought that as the act took place in the full view of the police Sub-Inspector in this case, it certainly amounted to an offence. But what is not otherwise an offence cannot become an offence when it is done in the full view of a Sub-Inspector of Police; no attempt has been made on behalf of the Crown to support the proposition that because the act was done in the presence or full view of the Sub-Inspector of Police, it amounts to an offence. In fact, so far as I understood the learned Public Prosecutor, he did not seriously contend that the act amounted to an offence under the circumstances. In my opinion, in the circumstances disclosed by the evidence, the act did not amount to a public nuisance and was not punishable as such. Moreover, the sentence imposed, viz. a fine of Rs. 10, was out of all proportion to the alleged offence; even in towns to which the Towns Nuisances Act applies similar acts are punished only with very small fines, namely of 4 or 8 annas. It is difficult to avoid the impression that this is a case of oppression, and not a case in which the criminal proceeding was institut