Decided on July 27,1950



Panigrahi, J. - (1.) This is an appeal by the State of Orissa Against an order of acquittal recorded by the Learned Sessions Judge, Mayurbhanj, in a case arising under Schedule 88 Penal Code.
(2.) The case for the prosecution is that the accused Oriya Sama Majhi disobeyed an order under Schedule 44 criminal P. C. promulgated on 5-2-49, in the Bamangati Subdivision of Mayurbhanj District, prohibiting the residents there in from carrying bows and arrows or any deadly weapons. It is alleged that the accused was moving about on 31-3-49 in his village, Maranda, with a bow, arrows, and a sword shouting that he would kill his enemies with, these weapons. The order under Schedule 44 was duly promulgated on 5-2-49, and it is proved that the accused had knowledge of the ban imposed under this order. The trying magistrate recorded a finding that the accused intentionally disobeyed the order and that the disobedience caused danger to human life and safety. He accordingly convicted the accused of an offence under Schedule 88, Penal Code and sentenced him to undergo rigorous imprisonment for four months and to pay a fine of Rs. 100/-, in default, to undergo r.gorous imprisonment for one month more. The learned Sessions Judge, Mayurbhanj, who heard the appeal against this conviction, while agreeing with the trial Court on his finding of facts held that the prosecution was defective and that the Magistrate had no jurisdiction to take cognizance of an offence under Schedule 88, Penal Code without a complaint in writing by the Subdivisional Magistrate who passed the order under Schedule 44 Criminal P.C. as required by Section 195 (1) (c), He accordingly directed the accused to be acquitted on the ground that prosecution was incompetent.
(3.) The question that falls to be determined is whether Schedule 95 (1) (a) applies to the facts of this case. An offence under Schedule 88 Penal Code was non-cognizable and nonbailable by a notification of the State Government in exercise of the powers conferred on them by Schedule 0 (1), Criminal Law Amendment Act, 1932 (XXIII (23) of 1932). Section 10(1) provides: "The provincial Government may, by notification in the official Gazette, declare that any offence punishable under Schedule 86. 188 and 189.. of the Indian Penal Code when committed in any area specified in the notification, shall, notwithstanding anything contained in the Code of Criminal procedure, 1898, shall, while such notification remains in force, be deemed to be amended accordingly". (2) The provincial Government may, in like manner and subject to like conditions and conditions and with like effect, declare that an. offence punishable under section 188 on section 506 Indian Penal Code shall be nonbailable". Acting under this section, the State Government in the Home Department issued a notification, dated 14-8-48 (No. 2946-C) which reads as under: "In exercise of the powers conferred by subsection (1) of section 10 of the Criminal Law Amendment Act 1932 (XXIII (23 of 1932) as applied to the Orissa States by Notification of the Government of Orissa in the Home Department No. 2-A dated 1-1-1948, as subsequently amended, the Governor of Orissa is pleased to declare that any offence punishable under section 188 of the Indian Penal Code when committed in any part of the Orissa States, shall, notwithstanding anything contained in the Code of Criminal Procedure 1893 (V of 1898) be cognizable". : By another notification of the same date, Viz.,No. 2 948-C., dated 14-8-48,the offence was made non-bailable also. When the State of Mayurbhanj was merged with Orissa, the Criminal Law Amendment Act 1932 and the notifications thereunder were extended to that State by the Administration of Mayurbhanj State Order, 1949 on 1-1-1949. The prosecution, there-fore, contends that as the offence under Schedule 88, Penal Code has been made cognizable, cognizance can be taken of it by a Magistrate on a report in writing of such facts made by the Police Officer, as provided in Schedule 90 (1) (b), Criminal P.C. It is accordingly urged that Schedule 95 (1) (a) stands amended by implication by reason of Schedule 0, Criminal Law Amendment Act read with the notification issued by the State Government. On the other hand, it is urged for the accused that the requirement that a prosecution for an offence under Schedule 88, Penal Code should be initiated by the officer - whose order has been disobeyed - by a complaint in writing, is not inconsistent with the police being invested with power to investigate and arrest without warrant.;

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