Brojo Nath Ghose And Another v. Empress Opposite Party.

The Petitioners have been convicted under sec. 188, I.P.C of disobeying an order lawfully passed by a Magistrate under sec. 144, C. Cr. P., and forbidding them from holding a hat at Konabari on Sundays, they knowing that such order has been promulgated and, by such disobedience, causing or tending to cause a not or an affray. The matter is before us on a rule granted to consider the conviction on the ground that there is no evidence of any disobedience tending to show any likelihood of a breach of the peace or other results mentioned in sec. 188, I.P.C, and next, that there is no finding of any disobedience on the part of the accused within the meaning of that section.

Now, in order to constitute an offence under sec. 188, I.P.C, it is necessary to show, first, a lawful order promulgated by a public servant; second, a knowledge of the order and disobedience of it, and thirdly, the result—in the present case, such as has already been described—that is likely to follow such disobedience. The Sessions Judge in his judgment sufficiently finds the first two elements of the offence but, in regard to the last, that judgment is silent. The judgment, no doubt, deals with the points raised for determination by the Appellate Court and, in confirming the conviction in this particular instance, we must take it that the learned Sessions Judge adopted the grounds stated in the judgment of the first Court for arriving at a finding in respect of the third point, that is to say, the result proved in this case as being likely to be caused by a disobedience of that order. The Magistrate, as the Judge remarks, unfortunately allowed the prosecution in this case to be conducted by a private person, that is to say, the owner of the hat which it was intended to protect by the order under sec. 144. This we think, is much to be regretted because it has probably led the Magistrate not to see himself that the grounds upon which the order under sec. 144, C. Cr. P., was passed were proved by evidence at the trial/We cannot suppose that, in passing such an order, the Magistrate had not materials before him to show that there were just grounds for apprehending that a breach of the peace was likely to take place if such an order was not passed and, therefore, it was obviously necessary for the Magistrate to have such evidence forthcoming at the trial in order to support the conviction for the offence for the prosecution of which he had specially given sanction under sec. 195, C. Cr. P. The Magistrate, in dealing with this thus expresses himself:— “The prosecution could not in time produce proof as to the result of the disobedience. The case having protracted long, along with the connected cases, further time could not be allowed for the purpose. It is, however, in evidence that there was a big and old hat within about half-a-mile from the Konabari hat, namely, the at Nimdunpur. The proprietor is a well-to-do man. It is sufficiently clear that a rival hat established in such close proximity has the natural tendency to cause a riot or an affray. The injunction being disobeyed, the proprietors of the two hats might commit a serious riot in going to protect the interests of each. There is, at least, evidence that as soon as the injunction was disobeyed, the shop-keepers been to close their shops, evidently as it would the unsafe after that to continue in the hat. The accused had to make efforts to detain them. Then riot or affray was possible even as between the proprietors and managers on the one hand and the vendors on the other.”

Now, there is not only no evidence as to the probable result of disobedience to the order under sec. 144, but there is no sufficient ground upon which such a finding could have been arrived at. No about, within our experience, the establishment of a rival hat at a place near to an old hat and to be held on the same day has often led to a breach of the peace, but it would not be safe or proper that such occurrences do sometimes take place should alone form a sufficient ground for a conviction under sec. 188, I.P.C It would be as well to consider that the prevalence of a crime in a particular locality was evidence that the accused did commit such a crime without any evidence thereof. On these grounds, we think that the conviction under sec. 188, I.P.C, is bad, and we accordingly set it aside as well as the sentence and make the rule absolute.

Conviction and sentence set aside:

H.P.C

Rule made absolute.