D. Srinivasiah and ors. Vs. Government of Mysore - Court Judgment

Excerpt:
- religious endowments act, 1863 [repeal by act ii /1927] section 6 of act ii of 1927 & section 8; [a.s. bopanna, j] application of the repealing act held, section 8 would clearly indicate that the repeal of religious endowments act would apply in so far as hindu religious endowments to which the act applies. but in so far as the jain religious endowments, the repeal by act (ii) of 1927 is not applicable. further, the religious endowments act 1863 has been repealed only in so far as it applies to hindu religious endowments and the repeal is specific to that extent and therefore the applicability of the act to the jain religious endowments act, 1863 is still applicable to the jains of dakshina kannada. section 10; maintainability of application under power of the district judge to fill up the vacancy of the membership of jaina mathasthapana committee held, section 10 of the act would provide for filing application for filling up the vacancy which would occur among the members of the committee before the district judge as contemplated under the provisions of the act, since the same would remain in force in so far as the jain religious endowments are concerned. section 10 is the only provision on which the applicants would have to fall back upon to seek for filling of the vacancy that arises in the committee. that being so, the i additional district judge, was not justified in dismissing the petition filed under section10 of the act, as not maintainable. the court has to consider the application filed by the petitioner under section 10 of the religious endowments act, 1863 (act xx of 18863). - according to the learned sessions judge, the evidence clearly shows that the disobedience, though it did not cause any annoyance or obstruction was actually tending to cause such obstruction or annoyance as has been referred to in the section. , in the absence of evidence as to the likely result of the disobedience of such order is bad in law.ordermallappa, j.1. this is a revision petition against thejudgment in criminal appeal no. 233 of 50-51 onthe file of the sessions judge, bangalore, confirming the conviction and sentence passed by the city magistrate, bangalore, in c.c. no. 1672/50-51under section 188, i. p. c. and sentencing the petitioners-accused to undergo simple imprisonment,for 7 days. 2. the case against the petitioners is that the district magistrate, bangalore, issued a prohibitory order under section 144, cr. p. c., on 3-10-1950 prohibiting the assemblages and processions of more than 6 persons and all demonstrations shouting of slogans etc., for a period of 15 days within the limits of the city of bangalore municipal corporation, and that the petitioners went in a procession defying the prohibitory order and as such the police arrested the petitioners and placed a charge sheet for an offence under section 188, i. p. c.3. the learned magistrate convicted the accused petitioners and the conviction has been upheld in appeal by the learned sessions judge. according to the learned sessions judge, the evidence clearly shows that the disobedience, though it did not cause any annoyance or obstruction was actually tending to cause such obstruction or annoyance as has been referred to in the section. he does not state what that evidence is or to whom there was obstruction or annoyance. the learned magistrate no doubt says that there was likelihood of trouble, that the district magistrate passed an order on 3-10-1950 to prevent breach of peace and that about 200 persons including the petitioner accused went in a procession shouting slogans in defiance of that order for a distance of 3/4 this of a furlong before they were arrested. from this he concluded:'it is clear from the evidence that there was a prohibitory order in force and that the accused disobeyed the same. hence, i find all the accused guilty of an offence under section 188,1. p.c.'he has not applied his mind as to whether any further ingredients were necessary for convicting the accused. the learned sessions judge had no material either to come to the conclusion that the behaviour of the accused tended to cause obstruction annoyance etc. to any person.4. it will be noticed that section 188, i. p. c. requires four ingredients: (1) there must be an order promulgated by a public servant, (2) the public servant must have been lawfully empowered to promulgate such order, (3) a person must disobey such an order and (4) such disobedience must cause or tend to cause obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or danger to human life, health or safety, or a riot or affray. in this case, there is evidence to satisfy the first three ingredients. evidently there was an order duly promulgated by an officer duly empowered to do so and the accused knowingly disobeyed it. however, before the accused could be convicted of an offence under section 188,1. p c., it must be shown that their disobedience caused or tended to cause obstruction, annoyance or injury etc., as stated in the section itself. there is no evidence to show that the disobedience tended to cause obstruction annoy, ance or injury or risk of obstruction, annoyance or injury to any person lawfully employed as was argued.5. as observed in brojo nath v. empress, 4, cal. w. n. 226, by prince and hill jj.,'a conviction under section 188, i. p. c., for the disobedience of an order under section 144, cr. p. c., in the absence of evidence as to the likely result of the disobedience of such order is bad in law.'in the decision reported in osman gani v. emperor : air1930cal130 , where patterson j. agreed with rankin c. j., it is observed, that:'it has to be proved that the accused not merely disobeyed the lawful order but that the act of disobedience was such as caused or involved the risk of a breach of the peace or other danger or trouble'to support a conviction under section 188, i. p. c. the decision in mt. lachmi devi v. emperor : air1931cal122 is also that of rankin c. j., with whom malik j. agreed entirely and it was held that :'under section 188 mere disobedience of an order does not constitute an offence in itself. there must be a disobedience of the order and then it must be shown that the disobedience has a certain consequence or tends to somersault'.sitting in revision devadoss j. held in the case reported in paramasiva mooppan v. emperor, 109 ind. cas 606 (mad.) that:'in order to justify a conviction under section 188, penal code, for disobedience of a lawfully promulgated order of a magistrate, there must be a finding that the presence of the accused was likely to cause or tended to cause obstruotion, annoyance or injury or risk of obstruction, annoyance or injury to any person or any one of the things mentioned in clause (3) of the section.'the same view is taken by sen j. in the case reported in the 'king v. darbarilal shaw, 4 d. l r. (cal.) 267. the decision in emperor v. niazu khan, 148 ind. cas. 518 (oudh) is relied on as against the above decisions but i do not think that there is anything in this decision that is really opposed to the observations referred to in the above decisions. the revision petition is, therefore, allowed. the conviction and sentence are set aside.

Judgment:
ORDER

Mallappa, J.

1. This is a revision petition against thejudgment in criminal Appeal No. 233 of 50-51 onthe file of the Sessions Judge, Bangalore, confirming the conviction and sentence passed by the City Magistrate, Bangalore, in C.C. No. 1672/50-51under Section 188, I. P. C. and sentencing the petitioners-accused to undergo simple imprisonment,for 7 days.

2. The case against the petitioners is that the District Magistrate, Bangalore, issued a prohibitory order under Section 144, Cr. P. C., on 3-10-1950 prohibiting the assemblages and processions of more than 6 persons and all demonstrations shouting of slogans etc., for a period of 15 days within the limits of the City of Bangalore Municipal Corporation, and that the petitioners went in a procession defying the prohibitory order and as such the Police arrested the petitioners and placed a charge sheet for an offence under Section 188, I. P. C.

3. The learned Magistrate convicted the accused petitioners and the conviction has been upheld in appeal by the learned Sessions Judge. According to the learned Sessions Judge, the evidence clearly shows that the disobedience, though it did not cause any annoyance or obstruction was actually tending to cause such obstruction or annoyance as has been referred to in the section. He does not state what that evidence is or to whom there was obstruction or annoyance. The learned Magistrate no doubt says that there was likelihood of trouble, that the District Magistrate passed an order on 3-10-1950 to prevent breach of peace and that about 200 persons including the petitioner accused went in a procession shouting slogans in defiance of that order for a distance of 3/4 this of a furlong before they were arrested. From this he concluded:

'It is clear from the evidence that there was a prohibitory order In force and that the accused disobeyed the same. Hence, I find all the accused guilty of an offence under Section 188,1. P.C.'

He has not applied his mind as to whether any further ingredients were necessary for convicting the accused. The learned Sessions Judge had no material either to come to the conclusion that the behaviour of the accused tended to cause obstruction annoyance etc. to any person.

4. It will be noticed that Section 188, I. P. C. requires four ingredients: (1) there must be an order promulgated by a public servant, (2) the public servant must have been lawfully empowered to promulgate such order, (3) a person must disobey such an order and (4) such disobedience must cause or tend to cause obstruction, annoyance, or injury, or risk of it, to any person lawfully employed, or danger to human life, health or safety, or a riot or affray. In this case, there is evidence to satisfy the first three ingredients. Evidently there was an order duly promulgated by an Officer duly empowered to do so and the accused knowingly disobeyed it. However, before the accused could be convicted of an offence under Section 188,1. P C., it must be shown that their disobedience caused or tended to cause obstruction, annoyance or injury etc., as stated in the section itself. There is no evidence to show that the disobedience tended to cause obstruction annoy, ance or injury or risk of obstruction, annoyance or injury to any person lawfully employed as was argued.

5. As observed in Brojo Nath v. Empress, 4, Cal. W. N. 226, by Prince and Hill JJ.,

'A conviction under Section 188, I. P. C., for the disobedience of an order under Section 144, Cr. P. C., in the absence of evidence as to the likely result of the disobedience of such order is bad in law.'

In the decision reported in Osman Gani v. Emperor : AIR1930Cal130 , where Patterson J. agreed with Rankin C. J., it is observed, that:

'It has to be proved that the accused not merely disobeyed the lawful order but that the act of disobedience was such as caused or involved the risk of a breach of the peace or other danger or trouble'

to support a conviction under Section 188, I. P. C. The decision in Mt. Lachmi Devi v. Emperor : AIR1931Cal122 is also that of Rankin C. J., with whom Malik J. agreed entirely and it was held that :

'Under Section 188 mere disobedience of an order does not constitute an offence in itself. There must be a disobedience of the order and then it must be shown that the disobedience has a certain consequence or tends to somersault'.

Sitting in revision Devadoss J. held in the case reported in Paramasiva Mooppan v. Emperor, 109 Ind. cas 606 (Mad.) that:

'In order to justify a conviction under Section 188, Penal Code, for disobedience of a lawfully promulgated order of a Magistrate, there must be a finding that the presence of the accused was likely to cause or tended to cause obstruotion, annoyance or injury or risk of obstruction, annoyance or injury to any person or any one of the things mentioned in Clause (3) of the section.'

The same view is taken by Sen J. in the case reported in The 'King v. Darbarilal Shaw, 4 D. L R. (cal.) 267. The decision in Emperor v. Niazu Khan, 148 Ind. Cas. 518 (Oudh) is relied on as against the above decisions but I do not think that there is anything in this decision that is really opposed to the observations referred to in the above decisions. The revision petition is, therefore, allowed. The conviction and sentence are set aside.