EMPEROR Vs. MOTILAL GANGADHAR KABRE

JUDGEMENT

(1.) The accused were convicted by the District Magistrate of East Khandesh under Section. 188 of the Indian Penal Code for disobedience of an order duly promulgated by the Sub-Divisional Magistrate, Erandol, under Section 144 of the Criminal Procedure Code. The only question raised on this petition is whether the order was a lawful order within the meaning of Section 144 of the Criminal Procedure Code. Two points are taken by Mr. Gupte on behalf of the petitioners. The first is that the order does not state the material facts of the case as required by Sub section (1) of the section; and, secondly, the order is too wide and beyond the powers conferred by Sub-section (3) of Section 144 of the Code....

(2.) Before a Magistrate can take action under this section he must be of the opinion that immediate prevention or speedy remedy is necessary, and when he has made up his mind that it is so, he must state the material facts in the order. It will be seen that no material facts are set out in the first part of the order. It appears from the judgment of the learned District Magistrate that the order was promulgated to prevent a breach of the peace and rioting, which the authorities apprehended on account of the sentences passed by the High Court in what is now known as the Sholapur case. That, we think, was a material fact which should have been stated in the order; and we think that this part of the order as it stands is vague and does not comply with the requirements of Section 144(1) of the Code.

(3.) The second point is a more substantial one. It is clear from the record that the order was promulgated under Sub-section (3) of Section 144 of the Criminal Procedure Code, and that the petitioners are not included in the persons specially named in the order, and the order would be applicable to them only as members of the public generally.