Authored By : Henry Thoby Princep, John Peter Grant

Henry Thoby Princep and John Peter Grant, JJ.

1. This is an application made on behalf of twenty-fourpersons, one of whom, Bukshi Shonar, has been convicted under Section 157 ofthe Indian Penal Code and the others under Section 188. As regards BukshiShonar, it is sufficient to state that there is evidence which has beenbelieved by the Deputy Magistrate and by the District Magistrate in appeal,which is sufficient for his conviction. There are no grounds for interfering asa Court of Revision in respect of this person.

2. It appears that in 1883 an order was passed by theMagistrate under Section 145 of the Code of Criminal Procedure in a disputebetween certain members of the Nag family and Kutubudin, in which it wasdecided that the former was in possession of certain lands, and it was declaredthat they were entitled to retain possession thereof until evicted in duecourse of law, all disturbance of such possession until such eviction beingforbidden.

3. The petitioners are in the service of Kutubudin and onewho has purchased a small share of his property which adjoins the land indispute, or have been engaged by those who represent these persons in theimmediate neighbourhood of this land. They have now been convicted underSection 188 of the Indian Penal Code of having disobeyed an order passed in1883 under Section 145 of the Code of Criminal Procedure, knowing that by thisorder they were directed to abstain from interfering with the possession of theNag family.

4. The first objection raised is that, inasmuch as the orderwas not directed to them, they have not been properly convicted under Section188.

5. The order in question was no doubt passed in a proceedingto which none of the petitioners were parties, but it was a general order andhad the effect of notifying to all concerned in the dispute then underadjudication that, as between those persons and the Nags, the Nags were to bemaintained in possession. The petitioners are either servants of Kutubudin, theunsuccessful party in that case, or the purchasers of a share in his estate,and the attempt made to disturb the possession of the Nag family is exactly onthe same grounds as set up in that case. That the petitioners were aware of theMagistrates order is clear, and the only question, therefore, is whether theycan properly be punished for direct disobedience to it. That order not onlyforbade all disturbance with the possession of the Nag family, but referred theopposite party to the Civil Court for a determination of the claim topossession set up by him, It is in consequence of an assertion of this verysame claim that the present proceedings were instituted. The facts found showthat these petitioners at the instance of Kutubudin have attempted to disturbthe possession of the Nags in disobedience of the Magistrates order, and theyare, therefore, liable for the consequences as much as Kutubudin. We areaccordingly of opinion that on the facts found by the lower Courts thepetitioners have been rightly convicted.

6. It is next objected that the order in question was not alegal order, and that, therefore, the petitioners were not bound to obey it.

7. It appears that instead of putting on the record of thistrial as an exhibit the order itself, the Magistrate has made part of thatrecord the whole of the previous record. This, we remark, was a most unusualand unnecessary proceeding, since the only portion of that record which wasrelevant to this trial was the order itself. Mr. Evans accordingly claimed theright to refer to all these proceedings, and contends that there is nothing toshow that the Magistrate recorded a proceeding setting out the grounds uponwhich he considered that a breach of the peace was imminent, such as wouldauthorize his interference between the parties; and he further contends, on theauthority of certain cases decided in this High Court, that the proceedings arebad for want of jurisdiction, and that consequently the order was withoutauthority and cannot be enforced.

8. The cases on this point are, we observe, contradictory,and if it really arose we should feel bound to refer the matter for settlementby a Full Bench; but on examination of the record we find no valid ground forthis objection. The Magistrate refers to a Police report which clearly sets outthe probability of a breach of the peace, and we must regard that report asforming part of, and incorporated with, the Magistrates proceeding.

9. We accordingly see no sufficient grounds for interferingas a Court of Revision.

10. The rule is discharged.

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Goluck Chandra Pal and Ors.vs. Kali Charan De (30.04.1886 -CALHC)