D. Srinivasiah and Others vs Government of Mysore

Mallappa, J.—This is a revision petition against the judgment in criminal Appeal No. 233 of 50-51 on the file of the Sessions Judge, Bangalore, confirming the conviction and sentence passed by the City Magistrate, Bangalore, in C.C. No. 1672/50-51 u/s 188, I. P. C. and sentencing the petitioners-accused to undergo simple imprisonment, for 7 days.

The case against the petitioners is that the District Magistrate, Bangalore, issued a prohibitory order u/s 144, Cr. P. C., on 3-10-1950 prohibiting the assemblages and processions of more than 6 persons and all demonstrations shouting of slogans etc., for a period of 15 days within the limits of the City of Bangalore Municipal Corporation, and that the petitioners went in a procession defying the prohibitory order and as such the Police arrested the petitioners and placed a charge sheet for an offence u/s 188, I. P. C.

The learned Magistrate convicted the accused petitioners and the conviction has been upheld in appeal by the learned Sessions Judge. According to the learned Sessions Judge, the evidence clearly shows that the disobedience, though it did not cause any annoyance or obstruction was actually tending to cause such obstruction or annoyance as has been referred to in the section. He does not state what that evidence is or to whom there was obstruction or annoyance. The learned Magistrate no doubt says that there was likelihood of trouble, that the District Magistrate passed an order on 3-10-1950 to prevent breach of peace and that about 200 persons including the petitioner accused went in a procession shouting slogans in defiance of that order for a distance of 3/4 this of a furlong before they were arrested. From this he concluded:

"It is clear from the evidence that there was a prohibitory order In force and that the accused disobeyed the same. Hence, I find all the accused guilty of an offence u/s 188,1. P.C."

He has not applied his mind as to whether any further ingredients were necessary for convicting the accused. The learned Sessions Judge had no material either to come to the conclusion that the behaviour of the accused tended to cause obstruction annoyance etc. to any person.

It will be noticed that Section 188, I. P. C. requires four ingredients: (1) there must be an order promulgated by a public servant, (2) the public servant must have been lawfully empowered to promulgate such order, (3) a person must disobey such an order and (4) such disobedience must cause or tend to cause obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or danger to human life, health or safety, or a riot or affray. In this case, there is evidence to satisfy the first three ingredients. Evidently there was an order duly promulgated by an Officer duly empowered to do so and the accused knowingly disobeyed it. However, before the accused could be convicted of an offence u/s 188,1. P C., it must be shown that their disobedience caused or tended to cause obstruction, annoyance or injury etc., as stated in the section itself. There is no evidence to show that the disobedience tended to cause obstruction annoyance or injury or risk of obstruction, annoyance or injury to any person lawfully employed as was argued.

As observed in Brojo Nath v. Empress, 4, Cal. W. N. 226, by Prince and Hill JJ.,

"A conviction u/s 188, I. P. C., for the disobedience of an order u/s 144, Cr. P. C., in the absence of evidence as to the likely result of the disobedience of such order is bad in law."

In the decision reported in Osman Gani Mistry and Others Vs. Emperor, , where Patterson J. agreed with Rankin C. J., it is observed, that:

"It has to be proved that the accused not merely disobeyed the lawful order but that the act of disobedience was such as caused or involved the risk of a breach of the peace or other danger or trouble"

to support a conviction u/s 188, I. P. C. The decision in Mt. Lachmi Devi and Others Vs. Emperor, is also that of Rankin C. J., with whom Malik J. agreed entirely and it was held that :

"Under Section 188 mere disobedience of an order does not constitute an offence in itself. There must be a disobedience of the order and then it must be shown that the disobedience has a certain consequence or tends to somersault".

Sitting in revision Devadoss J. held in the case reported in Paramasiva Mooppan v. Emperor 109 Ind. cas 606 (Mad.) that:

"In order to justify a conviction u/s 188, Penal Code, for disobedience of a lawfully promulgated order of a Magistrate, there must be a finding that the presence of the accused was likely to cause or tended to cause obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person or any one of the things mentioned in Clause (3) of the section."

The same view is taken by Sen J. in the case reported in The "King v. Darbarilal Shaw 4 D. L R. (cal.) 267. The decision in Emperor v. Niazu Khan 148 Ind. Cas. 518 (Oudh) is relied on as against the above decisions but I do not think that there is anything in this decision that is really opposed to the observations referred to in the above decisions. The revision petition is, therefore, allowed. The conviction and sentence are set aside.