The Queen vs Nandkumar Bose and Others

Markby, J.—I think that in these cases all the convictions were wrong. They were made u/s 188 of the Indian Penal Code. In the first place there was a defect in procedure, because the Magistrate did not, as required by section 250, frame any charge in writing against the prisoners, or follow or comply with any of the requirements of sections 251 and 252; but not only is there a defect in procedure, but there is no doubt, as the Magistrate would himself have discovered, if be had followed the prescribed procedure and framed a specific charge, that there is no evidence to establish an offence u/s 188. Section 188 only applies where a person knowing that an order has been promulgated by the proper authorities disobeys that order, and such disobedience either causes or tends to cause any obstruction, annoyance, or injury to any one, or the risk of such obstruction, annoyance, or injury. Now, as far as I can see, there was no evidence that the carrying of arms by these persons was of that nature, and if their defence is true, it is clear that it was not of such a nature, as would make them punishable u/s 188, because what they were carrying arms for, was the lawful purpose of destroying game, and there is not the slightest indication to show that in so doing they would cause, or were in the least likely to cause, injury or annoyance to any person. The proclamation issued by the Magistrate under the orders of Government may have been a very proper one, and under certain circumstances might have become a proper foundation to proceed u/s 188, but for the reasons I have pointed out, it cannot be so in these cases. The conviction and sentences must therefore be quashed, and the fines, if any have been levied, must be returned to the parties.

Glover, J.

I am of the same opinion.