Paramasiva Mooppan and Others vs Emperor

Devadoss, J.—This is an application to revise the judgment of the Joint Magistrate of Kombakonam. The petitioners have been convicted

u/s 188,I. P.C., and sentenced to pay a fine. The prosecution case is that they disobeyed the order duly promulgated by the Magistrate not to

assemble in Kapistalam. P.W. 1 says that there was a crowd of 25 in the temple and he told them to go away and that they should not assemble in

contravention of the order passed, and most of them left except the accused, 11 in number, who stayed and would not go away. That the order

was duly promulgated is proved and that that is a proper order is not disputed. But the contention of Mr. Ethiraj is that the elements of an offence

u/s 188 have not been made out inasmuch as there is no finding that the disobedience caused or tended to cause obstruction, annoyance or injury

or risk of obstruction, annoyance or injury to any person lawfully employed. There is no finding of either of the Courts that the presence of the

accused was in any way likely to cause any rioting or was likely to cause obstruction. The learned Public Prosecutor contends that their presence

itself in the disturbed place like that without going away when ordered to go away was sufficient to bring them u/s 188. I am unable to uphold this

view of the section. If the assembly of the accused was likely to cause obstruction or annoyance to the other party and thereby tended to create a

riot, no doubt they would be guilty of an offence u/s 188. In the absence of a finding to the effect that it was likely to cause or tended to cause any

one of the following, that is, obstruction, annoyance or injury or risk of obstruction, annoyance or injury to any person or any one of the things

mentioned in Clause 3 they could not be convicted u/s 188. I set aside the conviction and sentence and direct the fines, if paid, to be refunded.