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AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Meredith, J.
Acts
  • provisions of S. 134, sub-Section (2)
  • Section 144(3) of the Cr PC.8.
  • S. 144, sub-Section (3)
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Meredith, J.
Acts
  • provisions of S. 134, sub-Section (2)
  • Section 144(3) of the Cr PC.8.
  • S. 144, sub-Section (3)
See more information ...
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This is a reference under Section 438 of the Criminal Procedure Code made by the learned Additional Sessions Judge of Gaya recommending that the conviction and sentence of two persons, Madan Kishore and Badri Lal, under Section 188, I.P.C., should be set aside. The convictions arose from events on 10–11 July 1939 in Nawadah town. On 10 July 1939 a stabbing occurred, causing communal tension between Hindus and Mahomedans. The Sub-Divisional Magistrate of Nawadah promulgated an order under Section 144 CrPC at about 7:45 P.M. on the same day, forbidding the assembly of five or more persons in public places within the limits of the Nawadah Union Committee and forbidding anyone from carrying any lathi or weapon there. The order was to remain in force for one week and was promulgated by beat of drum.

On the morning of 11 July the dead body of the stabbed person was carried in procession for cremation under police protection. Some distance behind the procession, Madan Kishore and Badri Lal were seen with three other persons, all five being armed with lathis. The police challenged them and attempted arrest; the other three escaped and Madan Kishore and Badri Lal were arrested. They were charged under Section 188, tried, and convicted, each being fined Rs. 25 or, in default, to undergo simple imprisonment for one month. The Sub-Divisional Magistrate made a written complaint, and the matter was subsequently the subject of the reference by the Sessions Judge.

Legal Issues Presented

  1. Whether the order under Section 144 CrPC was properly promulgated in accordance with Section 134(2) CrPC (specifically whether copies were affixed in public places as required by that provision).
  2. Whether it was proved that the accused actually had knowledge of the promulgation of the order (i.e., whether proof of promulgation alone suffices or positive evidence of knowledge is required).
  3. Whether, under Section 188 I.P.C., mere disobedience of an order is sufficient for conviction or whether there must be a finding that the disobedience caused or tended to cause obstruction, annoyance, injury, danger to life, or a riot/affray.
  4. Whether an order directed to "the public generally" within "the limits of the Nawadah Union Committee" sufficiently describes "a particular place" within the meaning of Section 144(3) CrPC.

Arguments of the Parties

Accused / Supporters of the Reference (as advanced by Mr. Sarjoo Prasad)

  • The order under Section 144 was not properly published in accordance with Section 134(2) CrPC because copies were not affixed in public places.
  • The accused did not have knowledge of the promulgation; they asserted they were at Rajgir when the order was promulgated.
  • The conviction under Section 188 is flawed because there was no finding that the disobedience caused or tended to cause obstruction, annoyance, injury, danger to life, or a riot/affray—i.e., more was required than mere disobedience.
  • The description "within the limits of the Nawadah Union Committee" does not sufficiently identify "a particular place" for an order directed to the public generally under Section 144(3) CrPC; therefore the order was beyond the Magistrate's power.

Crown / Prosecution

  • The Crown argued that the requirement in Section 134(2) to "stick up" copies applies primarily where an order is directed against individuals, not where it is directed against the public generally; the phrase "to such person" was relied upon to support this point.
  • The prosecution relied on the Magistrate's findings (and the evidence of the Sub-Inspector) that the order was promulgated by beat of drum and that the police had moved through the town in a vehicle stopping at places, supporting an inference that the accused had knowledge of the order.
  • The Crown pointed to the surrounding circumstances—recent stabbing, communal tension and the prohibitory nature of the order forbidding lathis—as supporting the conclusion that the accused's conduct tended to cause risk to public peace, satisfying Section 188.
  • The prosecution disputed the contention that "limits of the Nawadah Union Committee" was an insufficient description, and relied on case law and reasoning supporting a broader reading of "particular place" in Section 144(3).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
63 IC 865; AIR 1927 Cal 282; AIR 1927 Cal 306 Principle that proof of mere promulgation is not enough; there must be positive evidence that the accused had knowledge of the order he is charged with disobeying. The court accepted the correctness of the principle but found that in the present case the Magistrate validly inferred knowledge from circumstances (the manner of promulgation by beat of drum and the police's movements), so this precedent did not aid interference with the conviction.
AIR 1931 Bom 513 Held that an order prohibiting the public generally within whole municipal limits did not conform to S.144(3) and was beyond Magistrate's powers (Bombay ruling). The court considered this view to unduly narrow the operation of S.144(3) and did not follow it in the present case.
AIR 1931 Bom 325 Similar Bombay ruling that an order directed to the public generally across municipal limits failed the requirements of S.144(3). The court again rejected the restrictive view adopted in this Bombay decision as not compelled by the legislature's intent.
AIR 1935 Bom 33 Held that an order directed to the public when frequenting public or private streets in a particular city is sufficiently definite as to place to comply with S.144. The court cited this later Bombay case as supporting a broader view of what amounts to "a particular place" under S.144(3), aligning with the court's conclusion in the present case.
17 Lah 515 Held that the whole district of Lahore might be considered "a particular place" within the meaning of Section 144(3) CrPC (Lahore High Court view). The court expressly aligned with the Lahore High Court's broader interpretation and relied on it to hold that the limits of the Nawadah Union Committee could describe a "particular place" for purposes of S.144(3).

Court's Reasoning and Analysis

The court addressed the four points raised in the reference in sequence and applied the relevant statutory text and authorities to the facts of the case:

  1. Publication under Section 134(2) CrPC:

    The court noted that it does not appear copies of the order were affixed in public places as described in Section 134(2). The Crown argued the requirement to "stick up" copies applies only when the order is directed at individuals. The court observed some doubt on this interpretive point but did not decide it because Mr. Sarjoo Prasad conceded that even if the statutory method of promulgation had been irregular, that irregularity would not render the order ultra vires so as to prevent conviction of a person who in fact had knowledge of the order. The court also commented that affixing copies would be a desirable way to convey the order to persons not present when the order was promulgated by beat of drum.

  2. Knowledge of the Order:

    The court accepted as correct the cited authority that mere proof of promulgation is not enough and that positive evidence of knowledge is generally required. However, the court examined the Magistrate's findings and the evidence. The accused claimed to have been at Rajgir when the order was promulgated, but the Magistrate disbelieved that evidence. The Sub-Inspector testified that he promulgated the order by beat of drum in all streets and lanes, and police movements (in a car moving slowly and halting) supported dissemination. The court emphasized that knowledge is often proved circumstantially and inferred from surrounding circumstances. It concluded the Magistrate was entitled to infer that the accused knew of the order, so the second point failed.

  3. Substance required by Section 188 I.P.C.:

    The court considered the wording of Section 188, which requires more than mere disobedience: the disobedience must cause or tend to cause obstruction, annoyance, injury, danger to life, or a riot/affray. Although the Magistrate's finding could have been more precisely expressed, he observed that the disobedience was "certainly risky." The court interpreted this to mean risky to public peace rather than merely risky to the accused. Given the recent stabbing, the curfew, and the prohibition on lathis, the court accepted that five persons armed with lathis following a funeral procession in such communal tension were a potential menace to peace. Thus the court found the circumstances justified the inference that the disobedience tended to cause risk and therefore satisfied Section 188.

  4. Meaning of "a particular place" in Section 144(3) CrPC:

    The court examined the contention that an order directed to the public generally "within the limits of the Nawadah Union Committee" did not sufficiently describe "a particular place." Two Bombay rulings (AIR 1931 Bom 513 and AIR 1931 Bom 325) were cited as holding that broad municipal limits did not meet the requirement. The court rejected those rulings as adopting an unduly narrow construction of Section 144(3). It relied on a later Bombay decision (AIR 1935 Bom 33) which upheld that an order directed to the public when frequenting streets in a particular city is sufficiently definite, and on a Lahore decision (17 Lah 515) which went further by treating an entire district as a "particular place." The court agreed with the broader interpretation and concluded there was nothing in the points raised that justified interfering with the conviction.

Holding and Implications

Core Ruling: The court discharged the reference and upheld the convictions and sentences of Madan Kishore and Badri Lal under Section 188 I.P.C.

Implications:

  • Direct effect on the parties: The convictions and sentences imposed by the Magistrate stand and the reference to set them aside has been rejected.
  • Broader implications: The opinion favors a broader construction of what constitutes "a particular place" within Section 144(3) CrPC (aligning with AIR 1935 Bom 33 and 17 Lah 515) and emphasizes that knowledge of a promulgated order can be inferred from circumstances where promulgation was by beat of drum and police movements, but the opinion does not state that it is announcing a new legal precedent beyond its reasoning in this case. (The text does not expressly assert the setting of a new precedent.)

Disposition as recorded in the opinion: "Reference discharged." (Final paragraph: "Reference discharged.")

Show full summary ...

    Madan Kishore, In Re

    1. This is a reference under Section 438 of the Cr PC, by the learned Additional Sessions Judge of Gaya recommending that the conviction and sentence passed against two persons, under S. 188, 1. P.C, should be set aside. These two persons, Madan Kishore and Badri Lal, were convicted under S. 188, I.P.C, and sentenced to pay fines of Rs. 25 each or in default to undergo simple imprisonment for one month each in the following circumstances: On 10th July 1939 there was a stabbing, case in the town of Nawadah as a result of which there was considerable tension between the Hindus and the Mahomedans of the town. The Sub-Divisional Magistrate of Nawadah thereupon promulgated an order under Section 144 of the Cr PC, forbidding the assembly of five or more persons in any public place, street, or thoroughfare within, the limits of the Nawadah Union Commit, tee and forbidding the carrying by any person within those limits of any lathi or weapon of offence. This order was promulgated the same day at about 7-45 P.M by beat of drum and was to remain in force for one week.

    2. On the following morning, 11th July, the dead body of the person who had been stabbed was carried in procession under police protection for the purpose of cremation. Some distance behind this procession these two persons Madan Kishore and Badri Lal were seen going with three other persons all five being armed with lathis. The police challenged them and attempted to arrest them. The other three slipped away, and the two persons, already mentioned, were arrested. They were subsequently charged under S. 188, tried and convicted as already described, upon a complaint in writing made by the Sub-Divisional Magistrate.

    3. At the trial the accused pleaded, first that they were not aware of the order because they had been away at Rajgir when it was promulgated; secondly they denied that they had carried lathis and thirdly, they challenged the validity of the order. Four points have been mentioned in the letter of reference, in regard to which the learned Judge considers that the Magistrate was wrong; and these four points have been taken by Mr. Sarjoo Prasad who appears in support of the reference. The first is that the order under S. 144 was not properly published having regard to the provisions of S. 134, sub-Section (2) of the Cr PC, which as appears from para. 2 of S. 144 applies to orders under that Section as well as to orders under S. 133. S. 134(2) provides that:

    If such order cannot be so served (the reference 3s to personal service), it shall be notified by proclamation published in such manner as the Local Government may by rule direct and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.

    4. In the present case it does not appear that a copy or copies of the order were affixed in public places for the information of the public. It is argued for the Crown that the reference to such sticking up of copies in S. 134(2) is meant to apply only to cases where the order is directed against individuals and not against the public generally. This argument is based on the fact that the last words of the clause are “to such person” which it is argued can relate only to cases where the information is to be conveyed to a particular person as opposed to the public frequenting a particular place. There may be some doubt upon this point, and I do not consider it in necessary to decide the question because Mr. Sarjoo Prasad concedes that even if there has been this irregularity in the method of promulgation of the order, that in itself would not make it ultra vires, so as to prevent the conviction of any person who, being proved to have had knowledge of the order, nevertheless disobeyed it. Mr. Sarjoo Prasad has taken this point, he says, chiefly as bearing upon his second point—the question of knowledge; and indeed it is clear that whether necessary or not, affixing copies in conspicuous places would be a desirable means of conveying an order of this nature to the notice of the public who may not all be present in the place when the order is promulgated by beat of drum.

    5. The second point then is, that it is net-proved that these two persons actually had any knowledge of the promulgation of the order. Several rulings have been cited in which it has been laid down that it is not enough in such cases to prove that the order has been duly promulgated. There must also be positive evidence that the accused had knowledge of the order which he is charged with disobeying. These cases are 63 IC 865,1 AIR 1927 Cal 282 and AIR 1927 Cal 306.3 There can be no doubt about the correctness of this proposition and it is not challenged. But it is urged that in the present case there is a finding of knowledge and it is based on definite materials. The accused persons led some evidence to show that they were in Rajgir, but the Magistrate did not accept it and has criticized both the witnesses examined on the point. It is clear that he intended to find, even if he did not express himself very clearly, that at the time of promulgation the accused must have been in the town, and he comments on the evidence of the Sub-Inspector, Nawadah, as to how he promulgated the order. This witness stated that he himself promulgated it by beat of drum in all the streets and lanes of the town. The Magistrate remarks that the police in promulgating the notice had moved about the streets of the town in a car which had to move slowly and to halt at places. It is pointed out that evidence of knowledge can rarely be direct evidence; in most cases knowledge can only be proved by circumstantial evidence. The question of knowledge must generally be a matter of inference. As I have said, the Magistrate has not expressed himself very clearly; but I think there can be no doubt that he did mean to make this inference of knowledge from the circumstances, and the circumstances were such that he was entitled to make the inference. The second point, like the first, therefore fails. The third point is based on the wording of S. 188, 1. P.C, which lays down that:

    Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, be is directed to abstain from a certain act, or to take certain order, with certain property in his possession or under his management 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 person lawfully employed, be punished with simple imprisonment, etc., etc. 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 etc., etc.

    6. As the Section is worded, it is pointed out there must clearly be something more than mere disobedience of the order. It must also be shown that obstruction, annoyance or injury, danger to human life etc., etc. have been caused or might have been caused, and, it is said, that there is no such finding in the present case. Here again, however, there is a finding, though it might have been more precise. The Magistrate observed that the disobedience on the part of the accused was certainly risky. By this, in my view, he clearly meant risky not to the accused themselves but to the public peace, and the circumstances were such as to justify this finding. There was a clear state of communal tension. One man had been stabbed to death, a curfew order had been considered necessary, and it had been found necessary to forbid the carrying of lathis. Many instances come to mind where communal riots have arisen from very small initial causes. In circumstances like these, it can hardly be argued that when five persons appear behind a procession of the kind described, armed with lathis, each one of them was not besides disobeying the order also a potential menace to peace and in danger to the public. In these circumstances the third point in my view also fails. The last contention is based on the wording of S. 144, sub-Section (3) of the Cr PC, which runs as follows:

    An order under this Section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place.

    7. Here we are dealing with an order to the public generally; and it is argued that “within the limits of the Nawadah Union Committee” does not sufficiently describe a particular place within the meaning of S. 144(3). In support of this proposition two Bombay rulings have been cited: AIR 1931 Bom 513,4 where it was laid down that an order prohibiting the public generally and certain persons named therein from taking part in a procession within the whole of certain municipal limits and all public places within such limits, does not conform to the requirements of S. 144(3) and is beyond the powers of a Magistrate; and secondly, AIR 1931 Bom 325,5 where a similar view was taken. To adopt this view would, I consider, unduly narrow and restrict the operation of S. 144 in a way not contemplated by the Legislature when framing the Section. I see no reason why the limits of the Union Committee, if clearly and specifically defined, should not be considered as describing a particular place. The view adopted in those two Bombay rulings was not followed in a later Bombay case, AIR 1935 Bom 33,6 where it was held that an order directed to the public when frequenting public or private streets in a particular city is sufficiently definite as to place to comply with the requirements of S. 144. A Lahore case, 17 Lah 515,7 goes very much further. There it was held that the whole district of Lahore might be considered “a particular place” within the meaning of Section 144(3) of the Cr PC.

    8. Their Lordships further observed that the argument advanced was in their opinion, based on a mistaken interpretation of sub-s. (3) of S. 144. This sub-section, they considered, has nothing to do with the nature of the order, but is merely one of the four sub-sections which refer to the manner of promulgation and to the duration of an order under sub-s. 1. My own views coincide with those of their Lordships of the Lahore High Court, as expressed in that case. In my opinion there is nothing in any of the four points made in the letter of reference and argued before me, which would justify interference with this conviction. The reference is therefore discharged and the convictions will stand.

    D.S/R.K

    9. Reference discharged.

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    Comments

    Madan Kishore, In Re
    (Jan 31, 1940)