CHAPTER VI.

DISOBEDIENCE TO ORDER OF PUBLIC SERVANT.

T314. CHAPTER X. of the Penal Code contains various sections which are grouped under the general head of Contempts of the Lawful Authority of Public Servants. Few of these require any detailed examination, beyond the short notes which are appended to the sections in Part I. Sections 181 and 182 are examined in Chapter VII. In this chapter some remarks will be offered upon the section relating to Disobedience to an order of a Public Servant.

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Whoever, knowing that, by an order promulgated by a public servant1 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 or 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 person 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" (s. 188).

In order to constitute the offence created by this section, it is necessary to show: First, a lawful order promulgated by a public servant; second, knowledge of the order, and disobedience to it; and, thirdly, a special class of results likely to follow from such disobedience.

315. Some of the most important cases of orders by public servants are those provided for by Chapters X., XI.,

1 As to who are public servants, see Chatter Lal v. Thakur Pershad, 18 Cal. 518; Ebrahim Sircar v. Rex, 29 Cal. 236.

and XII. of the Crim. P.C. Chapter X., s. 133,1 authorizes the magistrate to issue a conditional order for the removal of nuisances, which becomes absolute in the ways specified in ss. 136, 137, 139, and breach of which, when it has become absolute, is declared to be punishable under s. 188 of the Penal Code.2

Under Chapter XI., s. 144, "in cases where, in the opinion of a district magistrate, a chief presidency magistrate, a sub-divisional magistrate, or of any other magistrate specially empowered by the Local Government or the chief presidency magistrate, or the district magistrate to act under this section, immediate prevention or speedy remedy is desirable, such magistrate may, by a written order stating the material facts of the case and served in manner provided by s. 134, direct any person to abstain from a certain act or to take certain order with certain property in his possession, or under his management, if such magistrate considers that such direction is likely to prevent, or tends to prevent, obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity, or a riot or an affray. An order under this section may, in cases of emergency, or in cases where the circumstances do not admit of the serving in due time of a notice upon the person against whom the order is directed, be passed ex parte. An order under this section may be directed to a particular individual, or to the public generally when frequenting or visiting a particular place. Any magistrate may rescind or alter any order made under this section by himself or any magistrate subordinate to him or by his predecessor in office. No order under this section shall remain in force for more than two months from the making thereof; unless, in cases of danger to human life, health or safety, or a likelihood of a riot or an affray, the Local Government, by notification in the official Gazette, otherwise directs."

1316. Under Chapter XII., s. 145, where a magistrate is satisfied from a police report or other information, that a dispute likely to cause a breach of the peace exists, concerning any land or water, or the boundaries

1 See it cited in full, post, ¶ 392.

3 A right of ferry comes within these terms. war, 26 Cal. 188.

2 Crim. P.C., s. 140.

Harbullubh v. Lachmes

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thereof within the local limits of his jurisdiction," he is to make certain inquiries which party was in actual possession at the time of the order for enquiry of the subject of dispute. Provided that if it appears to the magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date. If the magistrate decides that one of the parties was in such possession of the said subject, he shall issue an order declaring such party to be entitled to retain possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction. Nothing in this section shall preclude any party so required to attend or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the magistrate shall cancel his said order and all further proceedings thereon shall be stayed."

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A similar power is given under s. 147, where the dispute arises as to the right to exercise some privilege in the nature of an easement,3 By the various Police Acts, the superior officers of police are given full authority to direct processions, and to regulate the use of music in streets."

¶317. Where a public officer has passed an orders which he is competent to make in a matter over which he has jurisdiction, it is no defence to a charge for disobedience under s. 188 that the order was one which, from some error in law or in fact, he ought not to have made. So long as the order exists it cannot be questioned by anyone, who would otherwise be bound by it, on the ground that it ought not to have been passed. Nor can it be set aside by a Civil Court, whose function is to

1 As to the term indicated by the words " actual possession," see KatrasJherriah Coal Co. v. Sibkrista Daw, 22 Cal. 297.

2 As to the procedure under this section, see Protab Narain v. Rajendra, 24 Cal. 55; Lalahari v. Sukdeo, 27 Cal. 896; Belagal v. Rex, 26 Mad. 471. A proceeding under it is a Criminal Proceeding re Arumuga Tegundan, 26 Mad. 188, disagreeing with re Pandurang Govind, 25 Bom. 179.

3 Kalikissen v. Anand Chunder, 23 Cal. 557.

4 Act V. of 1861 (General), and ss. 30, 30A, as amended by Act VIII. of 1895, ss. 10, 11; Act XXIV. of 1859, s. 49 (Madras); Bengal Act IV. of 1866, s. 62; Bombay Act VII. of 1867, s. 27.

5 See as to the difference between an order to do a thing, and a notice that if it is not done by the party himself it will be done at his expense. Reg. v. Subramanian, 20 Mad. 1.

Reg. v. Narayana, 12 Mad. 475.

determine rights, whereas the powers in question are given to the magistrate to prevent injurious consequences to the public arising from the exercise of rights. As regards Chapter X. this was decided by a Full Bench in Calcutta, under the corresponding chapter of the Act of 1861, and s. 133 of the present Act expressly provides that "no order duly made by a magistrate under this section shall be called in question in any Civil Court." As to orders under Chapter XI., s. 144, it was decided on the corresponding sections of the Codes of 1861 and 1872, that the procedure, being a summary process intended to meet cases of emergency, was not a judicial proceeding, and was not subject to revision by the High Court,2 and could not be interfered with under s. 15 of the Charter Act. Orders made under Chapter XII. are on their face provisional, and only remain in force till the question of right is decided by a Civil Court; 4 till such a decision has been given, the High Court has no power to review the finding of the magistrate as to possession, and disobedience to the order is punishable under s. 188 of the Penal Code. As soon as, from any cause, an order has lapsed, or where it is from its nature temporary, it is no offence to act as if it had never existed.”

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¶ 318. It is not a punishable offence to disobey an order which it is not competent for the magistrate or other public authority to make. As, for instance, an order made under s. 62 of the Act of 1861, corresponding to s. 144 of the present Act, directing the removal of an embankment, on the ground that the adjacent lands were in danger of being flooded. A similar order, by way of a municipal bye-law, announcing that owners of cattle would be punished if the cattle did mischief by straying.9 An order by a Mamlutdar, directing the accused to keep his gateway open, so as to give effect to a right of way

1 Ujalamayi v. Chandra Kumar, 4 B.L.R. F.B. 24.

2 Reg. v. Abbas Ali, 6 B.L.R. 74; per Turner, C.J., Sundram v. Reg., 6 Mad., p. 222.

3 Re Chunder Nath Sen, 2 Cal. 293.

4 Crim. P.C., ss. 145, 147.

$ Bharut Chunder v. Dwarkanath Chowdhoy, 15 Suth. Cr. 86.

6 Goluck Chandra v. Kali Charan, 13 Cal. 175.

Reg. v. Sheodin, 10 All. 115.

8 5 Mad. H.C. Rulings xix.; Reg. v. Pratab Chunder, 25 Cal. 852; Reg. v. Saminadha Pillai, 19 Mad. 464.

9 Reg. v. Amiruddin, 6 B.L.R. 78, n.; S.C. 12 Suth. Cr. 36; Reg. v. Mazafar Khalifa, 9 B.L.R., Appx. 36; S.C. 18 Suth. Cr. 21.

through it claimed by another person. So orders issued by the district magistrate of Broach, and by the municipality of Ahmedabad, forbidding the giving of caste dinners, at a time when an outbreak of cholera was apprehended, however sensible as matters of advice, were held to be absolutely invalid, and convictions under s. 188 for disobedience to them were set aside. It has also been held that a magistrate cannot, under a section corresponding to s. 144, make an order which is in its nature irrevocable, such as directing the owner of land to cut down a large quantity of trees.3

319. The validity of a magistrate's order under Chapters X., XI., XII., depends not on the illegality of the act forbidden, but on the injurious consequences to the public health, safety, or peace, which may arise from its being permitted. Where there are no such special consequences, or where the order is not calculated to attain the purpose, the special jurisdiction created by the sections falls to the ground, where the special circumstances which justify the order cease to exist it may be cancelled. In some cases the existence of such consequences is itself sufficient to make the act illegal. As for instance, where a trade, which is a perfectly lawful occupation, and carried on in a lawful manner, is a public nuisance from the noxious fumes or smells which it produces (see, post, 390). In some cases the act is absolutely lawful, but in certain conditions of popular feeling is likely to lead to a breach of the peace, which justifies a suspension of its exercise for the sake of the public. For instance, where a landholder has established a new hát, or market, near an old-established hát belonging to a neighbourhood, and public disturbances were apprehended, it was held that the magistrate was justified in forbidding the holding of the new hát on the same days as were usual for the old one.6 In a similar case, where the magistrate had issued an order absolutely forbidding the holding of a hát on Tuesdays and Fridays, 1 Reg. v. Khandoji, 5 Bom. H.C. C.C. 21.

2 Reg. v. Sakhonidas, 14 Bom. 165; Reg. v. Harilal, ibid. 180.

8 Uttam Chunder v. Ram Chunder, 13 Suth. Cr. 72. See as to orders relating to temples or mosques, Ramanadhan v. Murugappa, 24 Mad. 45; 4 Anesh v. Ejaharuddi, 28 Cal. 446. Reg. v. Abdulla, 24 Mad. 262.

5 Manindra v. Barada, 30 Cal. 112.

6 Re Bykuntram, 10 B.L.R. 434; S.C. 18 Suth. Cr. 47, under s. 62 of the Act of 1861.