1. The petitioners have been, sentenced to pay a fine of Rs. 100/- each under S. 188, Penal Code for disobeying an order made against them under Section 144 of the Cr PC. On the facts found, there could be no question that there was disobedience of the order. Under S. 188, Penal Code, however, mere disobedience of an order made by a public servant lawfully is not punishable.
2. The disobedience must fall within the circumstances indicated in that section. It contains two clauses which may be quoted. Where a person disobeys such direction
“shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which, may extend to one month or with fine which may extend to two hundred rupees, or with both; and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a not or affray shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”
3. Obviously the first clause does not apply, as there is no question of causing obstruction annoyance or injury, or risk of obstruction annoyance or injury to any person lawfully employed. So far as the Second clause is concerned, there is no question either of the disobedience causing or tending to cause danger to human life, health or safety. The real question is as to whether the act of the petitioners tended to cause a not or affray.
4. It has been urged that there was no finding by the lower appellate Court that the act of disobedience of the petitioners tended to cause a not or affray. Admittedly, no not or affray had taken place. Without such a finding, there could be no conviction under S. 188, Penal Code. Reading the judgment of the lower appellate Court, I find that its finding was that the act of the petitioners was done stealthily by them in the night. On such a finding, it is impossible to conclude that the act of disobedience of the petitioners tended to cause a not or affray.
5. Mr. Raghunath Jha supporting the conviction-of the petitioners urged that the petitioners had gone there with their lantern and spades, and although they may have done so at night, their act itself tended to cause a not or affray, because if the party opposing the petitioners in the 144 proceeding had come to know what the petitioners were doing, they were bound to have come and resisted the act of the petitioners. It seems to me however, that to accede to the argument of Mr. Jha, I would have to go into the evidence and reverse the finding that the act of the petitioners was done stealthily. I am not prepared to go into the evidence of this case, because that would mean that the case would have to be argued like an appeal, where the accused would also be entitled to urge that the witnesses in the case were not reliable. I think an accused is entitled to every advantage of any finding in his favour when he urges an application in revision against his conviction. To my mind, the finding that the act of the petitioners was done stealthily in the night clearly indicates that the petitioners certainly took some precaution to prevent it being known as to what they were doing or intended to do. In these circumstances, it is not possible to say that their act, although disobedience of an order of the Court, was done in circumstances which tended to cause a not or affray. I would accordingly allow the application and set aside the conviction and sentence.
C/H.G.P
6. Application allowed.