SEN, J. - (1.) THIS is a Reference by the Sessions Judge of Burdwan, recommending that the order of conviction and aentenca passed on one Darbarilal Shaw for having committed an offence punishable under Section 188, Penal Code, be set aside on the grounds stated in the Letter of Reference, The facts briefly are as follows :
(2.) ON 12th January 1948, a report was sub -mitted by the Khasmahal Tahsildar that Darbari. lal Bhaw 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 to the extent of 6 inches in breadth. Upon this report being made to the Sub -Divisional Magistrate, he sent it for disposal to another Magistrate Sri. J. K. Ghose who drew up proceedings according to the provisions of Section 144, Criminal P.C. On 9th February 1948, another report was submitted by the Khasmahal Tahaildar that the order Under Section 144, Criminal P.C. was being disobeyed. Upon this a complaint was made by the Magistrate Sri J. K. Ghose charging Darbarilal Shaw and another with having committed an offence punishable Under Section 188, Penal Code. The matter was heard by Sri 8. C. Banerjee, Magistrate, 1st class, Asansol. He acquitted the other accused but found Dar. barilal Shaw guilty of the offence and fined him Bs, 100; in default he was sentenced to simple imprisonment for 7 days. The learned Judge in referring this matter to this Court states that the conviction is bad, inasmuch as Sri J, K. Ghose who passed the order Under Section 144, Criminal P.C., was not specially empowered to pass such an order and therefore he acted without jurisdiction. The order being without jurisdiction, the conviction for disobedience of the order, according to the learned Judge, cannot stand. The second ground mentioned in the letter of the learned Judge is that the service of the order passed Under Section 144, Criminal P.C. wag not regular, inasmuch as a duplicate copy of the order was not left with the accused. Lastly, he says that the order Under Section 144, Criminal P.C. should not have been passed as the evidence given was not sufficient to warrant such an order.
(3.) IN my opinion, none of these three grounds would justify this Court in setting aside the conviction of the accused.;