JUDGMENT Walford, J. - This is a reference made by the learned Additional Sessions Judge, Bahraich, recommending the setting aside of the conviction and sentence of S. Murtaza Ali, who had been convicted u/s 34 of the Police Act and sentenced to pay a fine of Rs. 40, or in default to one month's rigorous imprisonment. 2. The facts alleged in the case are that Murtaza Ali who is a shop-keeper in Chowk, Bahraich, bad placed a chair and a bench in front of his shop presumably for the convenience of his customers. Police constable Nabi Ashraf who was on duty, on seeing the bench and the chair on the road side made a report, whereupon Murtaza Ali was prosecuted. 3. To me it appears that this prosecution was frivolous and unjustified. As pointed out by the learned Additional Sessions Judge, Bahraich, the offence, if any does not fall within the purview of Section 34 of the Police Act. Not only is it necessary that there was some sort of an obstruction on the road but it must be proved that the obstruction was such as to cause inconvenience or danger to the public. There is absolutely no evidence on the record that the obstruction was of such a nature. Moreover, under Police Act in a case of such obstruction the duty of the Police u/s 31 of the Act, in the first instance, to require the offender to remove the obstruction and. on his refusal such action as may be necessary should be taken. 4. The learned Magistrate has also erred in the matter of sentence for he awarded a sentence of one month's rigorous imprisonment in default of payment of fine. Obviously this is illegal in as much as the maximum sentence of imprisonment award-able for the offence itself is only eight days rigorous imprisonment. 5. For the reasons given by the learned Additional Sessions Judge I accept the reference and set aside the conviction and sentence passed upon Murtaza Ali. The fine, if paid, shall be refunded to him forthwith.