Manoj Kumar Mukherjee, J. - (1.) One Mrs. Prova Agarwal filed an application under Section 144(1) Cr. PC praying for an order of restraint against the three petitioners. On that application, the learned Executive Magistrate, Alipore, called for a report from the local police station and pending receipt of such report, passed the following interim order : "In the meantime, Officer-in Charge, Ballyqunge Police Station will see that the O.Ps (the petitioners herein) do not create any sort of obstruction to the petitioner (Mrs Prova Agarwal) in using the bathroom and privy and kitchen attached to the petitioner's rented flat." Alleging wilful disobedience of the said order after promulgation, the learned Executive Magistrate filed a complaint against the three petitioners in the Court of the learned Chief Judicial Magistrate, Alipore under Section 188 I.P.C. The learned Magistrate took cognizance upon that complaint and issued process against the petitioners Aggrieved thereby the petitioners moved this Court and obtained the present Rule for quashing of the proceeding.
(2.) The only point that has been urged in support of the Rule is that the above quoted interim order is not a valid order as it has not been passed in accordance with Section 144 (2) Cr.P.C. anal disobedience thereof will not amount to an offence under Section 188 I.P.C. In support of the contention, reliance has been placed upon a judgment of this Court in the case of Bachuram v. State, reported in AIR 1956 Calcutta 102 wherein it has been observed as follows : "It was open to a person charged with disobedience to an order promulgated by a public servant lawfully empowered to promulgate such order, to plead in defence that the order though made with jurisdiction was utterly wrong or in-proper on the merits." On perusal of the facts of the instant case, I find much substance in the contention of the petitioner.
(3.) Under Section 144(1) Cr.P.C an Executive Magistrate may direct a person to abstain from a certain act when he forms an opinion that such direction is likely to prevent obstruction, annoyance or in jury to any person lawfully employed and for so doing he has to record an order stating the material facts of the case Under Section 144(2) Cr.P.C. such an order can be passed ex parte in cases of emergency or in other cases as mentioned therein.;