Patna High Court
Khoshi Mahton And Ors. vs The State on 29 April, 1964
Equivalent citations: AIR1964PAT526, 1964CRILJ704, AIR 1964 PATNA 526, 1965 BLJR 180
JUDGMENT Ramratna Singh, J.
1. The facts giving rise to this application are these.
There was a proceeding under Section 144 of, the Code of Criminal Procedure between the petitioners on one side and one Ibrahim Mian on the other, and both the parties were restrained from going over a particular piece of land over which paddy crops were standing. Notices were duly served on the parties on the 19th November, 1959. Subsequently, a petition was filed by Ibrahim Mian that the petitioners, along with others, went to the afore said land on the 24th November, 1959, and cut and re moved the standing paddy crops therefrom. After a police enquiry, a case under Section 188 of the Indian Penal Code against the petitioners was instituted by the State.
2. The petitioners pleaded innocence, and said that they did not go to the land nor did they cut or remove paddy crops standing thereon. The learned Magistrate accepted the case of the prosecution and further held that this action of the petitioners which amounted to disobedience of the orders under Section 144 tended to cause a riot or affray. The petitioners were, therefore, convicted under Section 188, I. P. C. and sentenced to undergo rigorous Imprisonment for two months each and to pay a fine of Rs. 55/- each, in default, to undergo further rigorous imprisonment for fifteen days. There was an appeal to the Court of Session by the petitioners, and the 'earn ed Sessions Judge accepted the findings of the trying Magistrate except the finding relating to the disobedience tending to cause a riot or affray. The learned Judge did not accept this finding, because, in his opinion, the disobedience did not tend to cause a riot or affray; and he reduced the sentence to simple imprisonment for one month each, maintaining the sentence of fine.
2a. The learned Advocate for the petitioners contended that, in view of this part of the learned Sessions judge's finding, no offence under Section 188, I. P. C. was committed. There was no appearance in this case an behalf of the State; but Ibrahim Mian, who had complained of the disobedience by the petitioners, has entered appearance through an Advocate, who informed us that his client received a notice regarding this case from the Sessions Judge. The learned Advocate for Ibrahim Mian, however, submitted that the aforesaid finding of the learned Judge is not correct, inasmuch as there were circumstances to show that the action of the petitioners was likely to result in a riot or affray.
3. Section 188 of the Penal Code reads as follows:
"188. Disobedience to order duly promulgated by public servant -- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession cr 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 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 riot 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.
Explanation. -- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm.
Illustration. -- An order is promulgated by a public servant lawfully empowered to promulgate such order directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order and thereby causes danger of riot. A has committed the offence defined in this section."
It is well settled that the prosecution has, in such a case, to prove three things, namely, (1) the promulgation of the order, (2) disobedience of the order, and (3) likely consequences of the disobedience as envisaged in paragraphs 2 and 3 of the section. In the instant case, however, paragraph 2 of the section does not come into play, as no policemen or choukidar had been deputed to waters the crops, it has been established that an order under Section 144, Cr.P.C. was promulgated and that the petitioners disobeyed that order by harvesting the standing crops on the 24th November, 1959, It is also admitted that actually no riot or affray was caused on account of this disobedience.
The only question, therefore, is whether the aforesaid act of disobedience might tend to causa a riot or affray, in view of the fact that crops were harvested and removed in the presence of Ibrahim Mian who thereupon reported the matter to the Sarpanch and to the Sub-divisional Magistrate. It was contended on behalf of the petitioners that the mere cutting or removing of the crops in the presence of Ibrahim Mian should not justify the inference that the disobedience was likely to cause a riot or affray. On the other hand, the learned Advocate for Ibrahim Mian submitted that those circumstances as also the evidence of Ibrahim Mian that due to the aforesaid act of disobedience there had been some apprehension of a breach of the peace, are sufficient to prove that the disobedience tended to cause a riot or affray. He has particularly referred to the Explanation to the section, and submitted that it was sufficient that the disobedience of the order by the petitioners was likely to produce harm.
4. A large number of decisions were cited at the Bar. Of all the decisions cited, the Explanation has been discussed only in Emperor v. Niazoo Khan, ILR 9 Luck 543 : (AIR 1934 Oudh 162). In that case which also arose out of a proceeding under Section 188 on account-of disobedience of an order passed under Section 144, Cr. P. C. it was argued that there was no definite finding that the action of each accused led to or caused a breach of the peace. Nanavutty, J. referred to the Explanation to Section 188, I. P. C. and said that from the facts of the case it was clear that both the accused Knew that their disobedience of the order was likely to produce harm in the sense of creating a breach of the peace. The detailed facts are not given in the report, but the significance of the Explanation has been pointed out therein.
5. In the matter of, Madan Kishore, AIR 1940 Pat 446, the facts are these. As a result of considerable tension between the Hindus and Mahometans of Nawadah town, an order under Section 144, Cr. P. C. had been promulgated forbidding the assembly of five or more persons in any public place, street or thoroughfare and forbidding the carrying by any person within those limits of any lathi or weapon. On the next day, the dead body of a person, who had been stabbed in the riot that had taken place earlier, was carried in a procession under police protection for the purpose of cremation. Some distance behind this procession, the two petitioners of that case were seen going with three other persons, all five with lathis. The two petitioners were arrested and subsequently prosecuted and convicted under Section 188 of the Penal Code, and the other three slipped away. It was argued fhat the action of the two petitioners which amounted to disobedience of the order under Section 144 Cr. P. C., did not tend to cause any trouble.
This argument was rejected by Meredith, J, with the following observations:
"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. 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 disobadience 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 stubbed 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 a danger to the public."
6. In Jaswant v. State, AIR 1951 All 828, in proceedings under Section 145, Cr, P. C. between one Nirajan Singh on the one side and the petitioners and others on the other, it was held by the Court under Section 145(5) of the Code of Criminal Procedure, that Niranjan was in possession and the court passed an order prohibiting the petitioners and their companions from interfering with his possession. In spite of this order, the petitioners forcibly took possession of the. land. Niranjan protested, but he was threatened and his witnesses induced him to leave the spot. Niranjan approached the Additional District Magistrate and asked him to make a complaint against the petitioners under Sections 188 and 447 of the Indian Penal Code, and the petitioners were prosecuted and convicted under Section 188. It was contended on behalf of the petitioners that there was no evidence to prove that the act done by them caused annoyance.
Desai, J. rejected this contention with the following observations:
"It is not necessary that annoyance is actually caused; it is sufficient if the infringement has a tendency to cause annoyance. It cannot be doubted that in this case the act done by the applicants, i.e. of taking forcible possession in spite of an order under Section 145 ;6), passed against them, had a tendency to annoy Niranjan Singh. The evidence shows that it did cause annoyance to him; he made a report of the occurrence and also moved the Additional District Magistrate to file a complaint against the applicants. If he had not been annoyed by their act, he would not have taken these steps. It appears that he was annoyed even at the moment when the appli cants were taking forcible possession; it was on account of his annoyance that he was induced by his witnesses to leave the spot so that something serious might not happen."
These decisions support the contention of the learned Advocate for Ibrahim Mian.
7. I shall now refer to the decisions relied upon by the learned Advocate for the petitioners. In Noor Mohammad v. The State, 1955 BUR 522, as also in Bharat Raut v. The State, AIR 1953 Pat 376, some crops standing on a piece of land, in respect of which an order under Section 144 of the Code of Criminal Procedure had been promulgated, had been stealthily cut and removed by the petitioners at night without the knowledge of the other party to the proceeding under Section 144, Cr. P. C. Hence, it was held that this disobedience on the part of (he petitioners would not tend to cause any breach of the peace. In the case of Noor Mohammad, 1955 BUR 522, Banerji, J. had relied on the decision in Bharat Raul as also on several other decisions, to which I shall now advert. In the case of Mt. Lachmi Devi v. Emperor, AIR 1931 Cal 122, six ladies were prosecuted and convicted under Section 188 of the Penal Code on the charge that they were proceeding along a street singing Bhajan or religious song, and it was held by the lower court that they constituted a procession for which they had no licence from the Commissioner of Police. The learned Magistrate had stated that the disobedience of the order of the Commissioner of Police by these ladies tended to cause an affray, as there were people at the time and there was a likelihood of a conflict between the police and the public as had often happened in those days. Rankin, C. J. set aside the conviction holding that it would not be right to find the ladies guilty under Section 138 merely upon the general consideration that in these days if any one were arrested it might lead to a riot or affray.
In the King v. Darbarilal Shaw, AIR 1949 Cal 577, a proceeding under Section 144, Cr. P. C. was started on a report by the Khasmahal Tahsildar that the opposite party in that case was making additions and alterations in an old building in such a way as to encroach upon the Khasmahal lands on the Grand Trunk Road. Subsequently, another report was submitted that the opposite party was disobeying the order under Section 144, Cr. P. C. The appellate Court had acquitted the opposite party, and the State preferred a revision in the Calcutta High Court, Sen J. upheld the order of acquittal, observing that, inasmuch as the Government was not a 'person', and therefore, where the disobedience was alleged to cause injury to the Government, it cannot be said that the ingredients of Section 188 were satisfied.
In Bhojo Noth Ghose v. Empress, 4 Cal WN 226 and Ram Gopal Daw v. Emperor, ILR 32 Cal 793 the dispute was on account of holding of rival hats by two Zamindars on some days of the week. No evidence, circumstantial or direct, was led at all in either of these cases to show that the holding of the rival hats was likely to lead to a breach of the peace between the rival Zamindars. It may be stated incidentally that in the Lucknow case, ILR 9 Luck 543 : (AIR 1934 Oudh 162), Nanavutty, J. dissented from the decision of the case in Ram Gopal Daw, ILR 32 Cal 793. But I would not go to that extent, because the facts of that case are distinguishable from those of the Instant case. The case of Parmeshwar Rai v. Emperor, AIR 1922 Pat 84 was also in respect of two rival hats. An order under Section 144 had been made against certain persons forbidding them to hold a new bazar and to interfere with the long standing old Gondra Bazar. This order was disobeyed, and the offenders were prosecuted and convicted under Section 188. Jwala Prasad, J. set aside the conviction for want of any evidence, direct or circumstantial, to show that there was any likelihood of any trouble, and he followed the decision of the Calcutta High Court in Bhojonath Ghose, 4 Cal WN 226.
In the case of Projapat Jha v. Emperor, 14 Cal WN 234, the petitioners had removed stealthily crops of the disputed lands in respect of which an order under Section 144 had been passed. In N. G. Sabde v. The Crown, AIR 1950 Nag 12, an order under Section 144 had been promulgated banning meetings of more than five persons. The petitioners and others, however, numbering more than five, assembled at a public place, but they were peaceful. Hidayatullah, J. held that the petitioners were not guilty of the offence under Section 188, as there was no evidence of any likely consequences following a breach of the order. His Lordship further observed that the particular order was passed to prevent unrest among the labourers and one would expect something proved in relation to it. But no such evidence had been adduced.
In Pradip Choudhury v. The State, AIR 1960 Assam 20, an order under Section 144 of the Code of Criminal Procedure had been promulgated on the ground that there was likely to be some demonstration against the Chief Minister of Assam on his visit to certain town. The petitioner was prosecuted under Section 188 of the Penal Code on the ground that he appeared on the street wearing a black badge. Mehrotra, J. set aside the conviction of the petitioner holding that the mere appearance of the petitioner on the street wearing a blackbadge would not amount to demonstration. There must be some evidence to show that any attempt was made to such a demonstration before the Chief Minister.
8. It will be noticed, therefore, that in none of the above cases, there was any evidence, direct or circumstantial, to show that there was any likelihood of a riot or affray or annoyance to any individual; therefore, they cannot apply to the instant case.
9. In the instant case, the petitioners cut and took away the standing paddy crops in presence of Ibrahim Mian, land but for the fact that Ibrahim Mian tolerated the act of the petitioners for the time being instead of resisting them from cutting or taking away the crops, the action of the petitioners was likely to result in a riot or affray. The learned Magistrate was, therefore, justified in drawing the inference from the circumstances of this case that the prosecution had proved that the disobedience of the order under Section 144 by the petitioners was likely to cause a riot or affray. This view is supported by the aforesaid decisions of Nanavutty, J. in the Lucknow case, Desai, J. in the Allahabad case and Meredith, J. in the Patna case. I am, therefore, of the opinion that the learned Sessions Judge was wrong in holding that disobedience of the order by the petitioners did not tend to cause a riot or affray.
10. In the result, there is no merit in the application, and it is dismissed.
S.P. Singh, J.
11. I agree.