Ramratna Singh, J. - (1.) The facts giving rise to this application are these. There was a proceeding under Section 144 of, the Code of Criminal Procedure between the petitioners on one side and one Ibrahim Mian on the other, and both the parties were restrained from going over a particular piece of land over which paddy crops were standing. Notices were duly served on the parties on the 19th November, 1959. Subsequently, a petition was filed by Ibrahim Mian that the petitioners, along with others, went to the afore said land on the 24th November, 1959, and cut and re moved the standing paddy crops therefrom. After a police enquiry, a case under Section 188 of the Indian Penal Code against the petitioners was instituted by the State.
(2.) The petitioners pleaded innocence, and said that they did not go to the land nor did they cut or remove paddy crops standing thereon. The learned Magistrate accepted the case of the prosecution and further held that this action of the petitioners which amounted to disobedience of the orders under Section 144 tended to cause a riot or affray. The petitioners were, therefore, convicted under Section 188, I. P. C. and sentenced to undergo rigorous Imprisonment for two months each and to pay a fine of Rs. 55/- each, in default, to undergo further rigorous imprisonment for fifteen days. There was an appeal to the Court of Session by the petitioners, and the 'earn ed Sessions Judge accepted the findings of the trying Magistrate except the finding relating to the disobedience tending to cause a riot or affray. The learned Judge did not accept this finding, because, in his opinion, the disobedience did not tend to cause a riot or affray; and he reduced the sentence to simple imprisonment for one month each, maintaining the sentence of fine. 2a. The learned Advocate for the petitioners contended that, in view of this part of the learned Sessions judge's finding, no offence under Section 188, I. P. C. was committed. There was no appearance in this case an behalf of the State; but Ibrahim Mian, who had complained of the disobedience by the petitioners, has entered appearance through an Advocate, who informed us that his client received a notice regarding this case from the Sessions Judge. The learned Advocate for Ibrahim Mian, however, submitted that the aforesaid finding of the learned Judge is not correct, inasmuch as there were circumstances to show that the action of the petitioners was likely to result in a riot or affray.
(3.) Section 188 of the Penal Code reads as follows: "188. Disobedience to order duly promulgated by public servant -- Whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, or to take certain order with certain property in his possession cr under his management, disobeys such direction, shall, if such disobedience causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to two hundred rupees, or with both, and if such disobedience causes or tends to cause danger to human life, health or safety, or causes or tends to cause a riot or affray, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Explanation. -- It is not necessary that the offender should intend to produce harm, or contemplate his disobedience as likely to produce harm. It is sufficient that he knows of the order which he disobeys, and that his disobedience produces, or is likely to produce, harm. Illustration. -- An order is promulgated by a public servant lawfully empowered to promulgate such order directing that a religious procession shall not pass down a certain street. A knowingly disobeys the order and thereby causes danger of riot. A has committed the offence defined in this section." It is well settled that the prosecution has, in such a case, to prove three things, namely, (1) the promulgation of the order, (2) disobedience of the order, and (3) likely consequences of the disobedience as envisaged in paragraphs 2 and 3 of the section. In the instant case, however, paragraph 2 of the section does not come into play, as no policemen or choukidar had been deputed to waters the crops, it has been established that an order under Section 144, Cr.P.C. was promulgated and that the petitioners disobeyed that order by harvesting the standing crops on the 24th November, 1959, It is also admitted that actually no riot or affray was caused on account of this disobedience. The only question, therefore, is whether the aforesaid act of disobedience might tend to causa a riot or affray, in view of the fact that crops were harvested and removed in the presence of Ibrahim Mian who thereupon reported the matter to the Sarpanch and to the Sub-divisional Magistrate. It was contended on behalf of the petitioners that the mere cutting or removing of the crops in the presence of Ibrahim Mian should not justify the inference that the disobedience was likely to cause a riot or affray. On the other hand, the learned Advocate for Ibrahim Mian submitted that those circumstances as also the evidence of Ibrahim Mian that due to the aforesaid act of disobedience there had been some apprehension of a breach of the peace, are sufficient to prove that the disobedience tended to cause a riot or affray. He has particularly referred to the Explanation to the section, and submitted that it was sufficient that the disobedience of the order by the petitioners was likely to produce harm.;