Parmeswar Rai and others vs King Emperor

Jwala Prasad, J.—This rule relates to an order of the Magistrate, dated the 14th January 1922, directing the prosecution of the petitioners u/s 188, I. P. C.

On a report of the Police, dated the 18th of November, 1921, a notice was issued u/s 144 of the Code of Criminal Procedure against certain persons, forbidding them to hold a new bazar and to interfere with the longstanding old Gondra Bazaar. This order was disobeyed and the offenders were prosecuted and convicted u/s 188, I. P. C.

The Police on the 13th of December, 1921, reported that, in spite of the conviction of the aforesaid persons, their friends and helpers are threatening "to break again the old Gondra Bazaar" and are determined to hold a new Bazaar quite close to it and are ready to create a serious breach of the peace. Accordingly he prayed for a general notice against the people, preventing them from going to the particular plots, where the new bazaar was proposed to be held and to persuade customers to sit on the new bazaar. As prayed by the Police, the Magistrate directed a general notice to be issued on the public and served on the spot, in the following order:-

"Issue a general order directed to the public frequenting the new market, or attending it to buy or sell, requiring them not to do so for the space of 2 months from date of service, and not to help in any way the continuance of the new bazar, so that thereby there may be a speedy remedy to prevent an imminent breach of the peace between the old bazar people and those sitting up and continuing the new one."

On the 20th of December, the Sub-Inspector of Police reported against the present petitioners, stating that in spite of the order of the Magistrate u/s 144, these persons "set the orders at defiance and did not care for the legal orders duly pro mulgated. They persuaded people and customers to sit in the new bazar, though they were quite willing to obey the orders and go to the old bazar." Says the Sub-Inspector, "They have deliberately disobeyed the orders, and I therefore pray that they may be prosecuted u/s 188, I. P. C. for such disobedience."

The Magistrate called upon the petitioners to show cause, why they should not be prosecuted for the disobedience of the order u/s 144 lawfully promulgated. On the 4th of January, 1922, the petitioners showed cause. They denied that they ever held the market and also that any market was held on the land in question, or that they kept any shop thereon. They also attacked the order of the Magistrate and the notice issued against them on various legal grounds. In short, they disclaimed any connection with the new bazaar or the plot on which it was held. They also denied having in any way disobeyed the order of the Magistrate.

The Magistrate on the same day considered that objection and held that no sufficient reason was shown, as to why the order u/s 476 of the Code of Criminal Procedure should not be passed directing their prosecution. He held that, "the notice was a general notice directed to the public under Clause (3) of Section 144, Cr. P. C., in order to prevent an imminent likelihood of a breach of the peace between the people connected with the two bazaars, the old and the new, meeting at the same place and on the same days of the week."

Continuing the Magistrate says that "Every member of the market, going to the bazaar, prohibited under the said order, which was duly promulgated by beat of drum, and helping by his presence to continue the bazar in defiance of the said order which was a lawful one, is liable to prosecution for disobedience of order u/s 188, I. P. C. The local Police has reported that these men after the proclamation persuaded the people and the customers to sit on, in the new bazaar."

It was contended that the order of the Magistrate u/s 144 was wholly illegal and without jurisdiction, inasmuch as it was a general order prohibiting no new market to be held in the vicinity of the old market, and such an order was calculated to interfere with the lawful exercise of the right of the people owning and possessing the land on which the new market was held.

It is true that the general order u/s 144 of the Code restraining the holding of a hat or market is not permissible: Rakhal Das v. Emperor (1915) 19 C. W. N. 248=15 I.C. 655. But the notice in the present case, which has been read to me, shows that the prohibition related only to the holding of the market on the same days as the old market is held and the object of the prohibition is to prevent a breach of the peace. The order passed by the Magistrate and the notice issued u/s 144 in the present case are covered by the decision of a Full Bench in the case of Bykantram Shaha Roy and others v. Meajan 10 B. L. R. F. B. 434=18 W. R. Cr. 47 and also by the decision in the case of Nagendra Nath Biswas v. Rakhul Das Sinha (1919) 23 C. W. N. 141=49 I.C. 97, which has been quoted by the Magistrate in his explanation submitted to this Court.

The last ruling has discussed the previous authorities in the case and has held that the order, such as the one that was passed in the present case u/s 144 is legal. It is also clear that the disobedience of such an order is punishable u/s 188, I. P. C., prosecution for which might start either by the sanction given u/s 195 of the Code of Criminal Procedure, or by an order passed u/s 476 of the Code. This view is also supported by the case of Projapat Jha v. Emperor (1910) 14 C. W. N. 234=5 I.C. 154.

I therefore hold that there is no defect or want of jurisdiction in the order passed by the Magistrate u/s 144 of the Code of Criminal Procedure. It is not a general order, but it only prohibits the holding of the new market on the same days as those on which the old market is held. The prohibition, against any person going to the place and sitting there for the purpose of holding the market or for the purpose of helping others and customers to carry on the market, seems to me to be covered by Section 144 under which a Magistrate may direct "any person to abstain from a certain act."

The fact that the petitioners have no concern with the land in question in the sense that they do not own or possess it, does not absolve them from the responsibility of obeying the prohibition enjoined upon them u/s 144 and directing them to abstain from doing the aforesaid act. Their contention would have applied had the order of the Magistrate been "to take certain order with certain property" in the possession or under the management of those persons under another clause of Section 144. Therefore in agreement with the view of the learned Government Advocate, I hold that the petitioners cannot plead in their defence that they are not liable for prosecution u/s 188, I. P. C. because they do not own or possess the land in question.

The order u/s 144 was therefore valid and a disobedience of that order is punishable u/s 188 I. P. C. and, if the petitioners in defiance of the order of the Magistrate u/s 144 went to the place and persuaded people and customers to sit in the new market, they disobeyed the order of the Magistrate; but the disobedience of such an order itself is not punishable u/s 188, unless that disobedience "causes or tends to cause obstruction, annoyance or injury to any person lawfully employed." In other words, the petitioners would not come within the purview of Section 188, unless the disobedience of the order of the Magistrate caused any annoyance, injury or obstruction to the old Bazar, which was being held in the vicinity. The petitioners deny in their petition, showing cause, having committed the offence.

Now, let us see whether the order of Magistrate u/s 476 of the Code of Criminal Procedure does in any way take into account the fact that there was no obstruction, annoyance or injury caused to the rival market. The order of the Magistrate is silent upon the point. It stops short with holding that the petitioners disobeyed the notice promulgated u/s 144 of the Code of Criminal Procedure. The report of the police is also silent upon the point, and the only ground urged by the police for an action to be taken u/s 188, I. P. C. is that the petitioners "did not care for the-legal orders duly promulgated." It appears to me that neither the Police nor the Magistrate directed their minds to the most essential element for constituting an offence u/s 188, I. P. C., namely, that the disobedience complained of must cause, or tend to cause, obstruction, annoyance or injury to any person lawfully employed. Now, if a conviction had taken place in the absence of the aforesaid element requisite for an offence u/s 188, the conviction would have been set aside; Brojo Nath Ghose and another v. Empress (1900) 4 C. W. N. 226.

It may be urged, and it has been urged by the learned Government Advocate in this case, that the previous reports of the Police clearly indicated that there was a serious danger to a breach of the peace and the order of the Magistrate passed u/s 144 also sets forth the said fact; but that is not enough. That was a condition required to be fulfilled for the initiation of the proceeding u/s 144 and for the notice to be issued under that section, under which a Magistrate can assume jurisdiction, only when there is a danger to a breach of the peace. The prosecution for the disobedience of an order can only lie, when the subsequent disobedience of the order promulgated u/s 144 was likely to cause annoyance, obstruction or injury to a person lawfully employed.

The reply to the argument of the learned Government Advocate was given by Prinsep, J. in the case of Brojo Nath Ghose and another v. Empress (1900) 4 C. W. N. 226 in the following orders: "Now, there is not only no evidence as to the probable result of disobedience to the order u/s 144, but there is no sufficient ground upon which such a finding could have been arrived at. No doubt, within our experience the establishment of a rival hat, at a place near to an old hat and to be held on the same day, has often led to a breach of the peace but it would not be safe or proper that such occurrences do sometimes take place should alone form a sufficient ground for a conviction u/s 188, I. P. C. It would be as well to consider, the prevalence of a crime in a particular locality was evidence that the accused did commit such a crime without any evidence thereof."

The present case has not reached the stage of conviction, but only has reached the direction, by the Magistrate ordering u/s 476 of the Code of Criminal Procedure; but the principle of the aforesaid decision should apply to the case in its present stage also, inasmuch as in giving direction for the prosecution the Court is bound to find that there was a prima facie case with respect to all the elements which are essential to constitute the offence with respect to which the order u/s 476 of the Code is passed. An order, which does not set forth all the elements of an offence covered by it, is therefore without jurisdiction.

Under similar circumstances their Lordships of the Calcutta High Court in the case of Projapat Jha and others v. Emperor (4) referred to above, set aside the sanction given by the Magistrate for a prosecution u/s 188, I. P. C. Their Lordships observed.: "A Magistrate should not sanction a prosecution u/s 188, unless he thinks that all the elements necessary for a conviction are present. In the judgment of the Magistrate and in the subsequent order of the Sessions Judge, there is nothing to show that either officer ever applied his mind at all to the question whether the disobedience of this order caused, or tended to cause annoyance, injury, obstruction or a riot. In the explanation (as in the present case) submitted by the Magistrate he has entirely ignored the two grounds on which the rule was issued and has confined himself to discussing other points in the petition with respect to which he was not consulted. We therefore derive no assistance from his explanation in dealing with this point. There is nothing to show, as we have stated, that the Magistrate thought that disobedience to his order tended to cause a riot. That being so, we think the sanction is wrong, and must be set aside."

Accepting the soundness of the aforesaid view, I set aside the order passed in this case against the petitioners u/s 476 of the Code of Criminal Procedure. The proceedings are quashed.