- (1.)THE applicants have been convicted under Sections 454 and 188 I. P. C. and have been sentenced to various terms of imprisonment.
(2.)IT appears that there was dispute between one, Jagdeni and the accused persons over the possession of a house. It resulted in proceedings under Section 145 in the court of Sub-Divisional Magistrate of Shahganj. On 14th March, 1964 the Magistrate passed a preliminary order and directed the attachment of the property, which was given in the possession of Ramraj Supurdar The police locked the house and handed over the key to the Supurdar. On 19th July, 1964 the accused approached the Supurdar and demanded the key from him, On his refusal to hand over the key the accused broke open the lock and took forcible possession of the house. On the following day the Supurdar moved an application in the court of Sub-Divisional Magistrate complaining of the forcible occupation of the house by the applicants. Thereupon the Magistrate filed a complaint against the accused under Section 188 I. P. C. Both the courts below had recorded a finding, that the accused took forcible possession of the house by breaking open the locks and that they disobeyed the order of the Magistrate promulgated by him on 14th March, 1964. They further held that the accused were guilty of house breaking in order to commit the offence of theft.
(3.)THE sole point urged by the learned counsel was that no order under Section 188 I. P. C. was promulgated by the Magistrate and, therefore, the applicants were not liable to be convicted. It was contended that what is made punishable under Section 188 is ah order made by a public functionary in the public interest and that an order requiring a private party not to interfere with the possession of another would not amount to 'promulgation' of an order.