SHEIKH ABDUL Vs. EMPEROR

JUDGEMENT

(1.) This Rule was issued by my learned brothers Mr. Justice Rankin and Mr. Justice, Duval on three grounds, first, that the learned Magistrate should have acquitted the accused holding that the knowledge which was the main ingredient of an offence under Section 188 of the Indian Penal Code was not brought home to the accused; secondly, that the learned Magistrate considered the merits and demerits of the prosecution and defence cases in a vague and general manner without considering the evidence of individual defence witnesses with reference to the accused for whom they deposed and the accused had been seriously prejudiced on account of this procedure. The petitioners have not pressed the third ground on which this Rule was issued.

(2.) In disposing of the Rule it is only necessary for me to deal with the first ground. Mr. Bose who appears for the petitioners has contended that it is not sufficient for the prosecution to prove that notice has been duly promulgated. The prosecution must prove by positive evidence that notice has been brought to the knowledge of the persons whom it is sought to affect by it. The learned Vakil points out that in dealing with the present case the Magistrate has held that as notice was duly promulgated the petitioners must be presumed to have had the knowledge of it. This, the petitioners contend, is entirely a wrong view of law. In support of their contention we have been referred to the case of Ram Das Singh V/s. Emperor to an unreported decision of this Court in Revision Case No. 754 of 1926 (Sheikh Aiyub V/s. Emperor) and also to a decision of the Lahore High Court in the case of Emperor V/s. Abdullah 63 Ind. Cas. 865 : 22 Cr. L.J. 705. The contention of the petitioners is obviously correct. It is not sufficient in order to affect a person with the knowledge of an order under Section 144 and to render him liable to conviction under Section 188 to show that the order had been duly promulgated. It is necessary to prove by positive evidence that he has the knowledge that the order has been made. The Magistrate has not approached the case from this point of view and he has not found that the accused persons in this case had the knowledge of the order for the disobedience of which he has punished them under Section 188.

(3.) The result is the conviction of, and the sentences passed on, the petitioners are set aside.