1883 (2) TMI 2 - HC - Indian Laws

Summary

The Madras High Court, in Innes and Kernan, JJ., addressed the issue of liability for an unfenced well located eight yards from a highway. The Court noted the absence of any statutory obligation in India analogous to the English statute requiring wells near highways to be fenced. While recognizing that such an unfenced well "must cause danger to the public" and "possesses some of the elements which constitute a public nuisance," the Court held that the omission to fence is not an "illegal omission" under Section 43 of the Indian Penal Code. The term "illegal" requires the act to be an offence, prohibited by law, or furnishing ground for civil action; none applied here. Furthermore, the Court expressed doubt that damage from a person straying off the road into the well would support civil liability, citing contributory negligence since the person "would be bound to keep to the public road." Accordingly, the Court set aside the conviction and sentence, ordering the fine to be returned.