ABU HUSAIN SHAIKH Vs. EMPEROR

JUDGEMENT

(1.) This rule is directed against the order, dated 1 December 1939, made by the learned Sessions Judge of Khulna, by which he affirmed the convictions of the petitioners under Section 188, I.P.C. The case for the prosecution was to the effect that the petitioners had disobeyed an order promulgated by the Sub-divisional Magistrate of Khulna prohibiting the holding of a hat at Domraon which had been established as a rival hat to another hat which is known as the Gazirhat. It was alleged that the prohibitory order was issued by the Sub- divisional Magistrate on 8 May 1939 and that thereby certain specially named persons and the public generally had bean forbidden to hold the rival hat at Domraon on Fridays and Mondays and had also been ordered to abstain from certain other acts set forth in the order. It was alleged that this order has been duly promulgated in the locality on 12 May 1939, but that in spite of its promulgation the petitioners (who are members of the general public) had disobeyed it and had therefore rendered themselves liable to prosecution under Section 188, I.P.C.

(2.) The case for the defence was mainly to the effect that the order had not been disobeyed and that, in any case, it was an invalid order and had not been properly promulgated in accordance with the provisions of the law. The case for the defence was rejected by both the Courts below and the petitioners were convicted under Section 188, I.P.C., and were sentenced to pay fines or, in default to undergo various periods of imprisonment.

(3.) Two points have been pressed by the learned advocate for the petitioners in connexion with this rule. In the first place he contends that the order was not properly promulgated in accordance with the provisions of the Criminal Procedure Code and he further contends that the order itself is invalid as it is not in proper form and gives insufficient information to the members of the public regarding the acts from which they had been ordered to abstain. In this connexion, it may be mentioned that these arguments are mainly based on the assumption that the notice which was actually promulgated was not the order recorded by the learned Magistrate on 8 May 1939 but an inadequate precis thereof contained in a parwana, dated 9 May 1939. It may be noted that the learned advocate does not contend that disobedience of the order did not tend to cause the requisite consequences for which provision is made in Section 188, I.P.C., As regards the promulgation of the order it appears that, on 8 May 1939 the learned Sub-Divisional Magistrate came to the conclusion that it was necessary to issue a prohibitory order restraining certain persons and the public generally, from holding or attending the rival hat at Domraon and he drew up a formal order with regard to this matter which is in the following terms: Whereas I am satisfied from a report of the Sub-Inspector of Police of Terokhada Police Station, dated 6 May 1939 endorsed by the Circle Inspector of Police, Sadar, dated 6 May 1939, that a rival hat is being held at Domra, Police Station Terokhada, within the local limits of my jurisdiction, at a distance of less than a mile from the old and long established hat at Gazirhat on Mondays and Fridays (i.e. the dates on which Gazirhat is held) whereby the public tranquillity is being disturbed, for which breach of the peace, danger to human life, public safety, riot, and affray, are imminent and whereas immediate prevention and speedy remedy of such disturbance is desirable, I do hereby direct under Section 144, Criminal P.C., the persons named in the margin and the public in general, when frequenting and visiting the said hat at Domra from the date of promulgation of this order, to abstain from holding or attending the rival hat at the above named place at Domra on Mondays and Fridays and not to do any unlawful acts by seizing or restraining traders and boatmen coming to Gazirhat and threatening or committing violence to the people attending Gazirhat or to commit any breach of the peace or disturb public tranquillity.