P L D 1961 Dacca 484 (PLP)

Nemo for the State. This rule has been issued at the instance of five persons, who have been convicted under section 188 of the Pakistan Penal Code for violation of an order under section 144 of the Code of Crimi nal Procedure, and sentenced to suffer simple imprisonment for one week each. Their appeal against the said order has also been dismissed by the learned Assistant Sessions Judge, 3rd Court, Barisal. They have also now served out the sentence, but the learned Advocate appearing in support of this Rule contends that he is nevertheless entitled to assail the conviction.

2. It appears that on the 31st of October 1957, and ex parte order under section 144 of the Code of Criminal Procedure was made against the accused persons prohibiting them from entering upon certain lands comprised in C. S. plot No. 1867 of khatian No. 222 (8757). This order appears from the service return to have been served in the afternoon of the 9th of November, 1957 ; but notwithstanding such service of the order, it is alleged that the accused persons on the 10th of November 1957, forcibly entered upon the land, and cut and took away half ripe paddy. It is for this that they were ultimately prosecuted under section 188 of the Pakistan Penal Code on the complaint of the Sub‑divisional Officer Patuakhali, filed on the 24th of February 1958.

3. Before this complaint was lodged, it appears that on the 3rd of December 1957, which was the day fixed for the showing of cause by the accused persons in the 144‑proceeding started on the 31st of October 1957, although the accused persons were absent, the Magistrate concerned was shown an order in a previ ous case, being M. R. case No. 216 of 1957, which showed that on the 19th of September 1957, a previous prohibitory order, in respect of the same lands against the present accused persons was made absolute. The said order was first made on the 24th of August 1957, and, as such, expired on the 21st of October 1957. As soon as the Magistrate who issued the second prohibitory order was shown this, he directed the complainant to come up with a specific case, and withdrew the order under section 144 of the Code of Criminal Procedure. Nevertheless, the prosecution for the violation of ex parte prohibitory order whilst it was in force, was launched, as already stated, on the 24th of February 1958.

4. In the trial Court as well as in the Court of appeal below various points both of law and fact were urged relating to the cognizance of the offence as well as to the question as to whe ther the order had in fact, been served on the accused persons. Although the trial Court in one place expressed itself as being of the view that cognizance was, in fact, taken by the Sub‑divisional Officer, and the case was merely transferred to him as a subordi nate Magistrate for disposal, it appears from the records that the Sub‑divisional Magistrate merely on perusing report of the police lodged a complaint before the Magistrate who tried the case. It was, therefore, the Magistrate himself who took cognizance thereof: It appears further that this particular Magistrate was not empowered to take cognizance of offences under section 190, subsection (1) (a) and (b) of the Code of Criminal Procedure. The learned Assistant Sessions Judge, however, took the view that even if this was so, the defect in the trial was cured by section 529 of the Code of Criminal Procedure.

5. With regard to the factum of service of the prohibitory order, both the Courts have concurrently found as a fact that the prohibitory order was, in fact, personally served on the petitioners before me in the present case. One other person, namely, one Julfikar, who also was made an accused in this case, was found not to have been so personally served and acquitted.

6. In this revisional application in this Court, however, a new point has been taken for the first time namely, that in so far as the prohibitory order for the violation of which the petitioners have been convicted, was itself a second prohibitory order made soon after the expiry of the first prohibitory order, it was, as such, an order really without jurisdiction. My attention has been drawn to subsection (6) of section 144 of the Court of Criminal Proce dure, which provides that if an order is intended to be continued beyond the period of two months specified in the said section, then that can only be done by the Provincial Government by a notifi cation published in the Official Gazette but not by the Magistrate himself. Hence, it is urged that the order being without jurisdic tion, was ab initio null and void and, hence, there could not be any conviction for the violation of such a null and void order. In support of this contention reliance has been placed on the fol lowing decisions in the case of Rashbehari Singh and others v. Jagnarain Rai (19 Cr. L J 365), Ashutosh Roy and others v. Harish Chandra Chattopadhya and others (29 C W N 411), Sheobalak Singh v. Kamaruddin Mandal and others (A I R 1922 Pat. 435 (F B)), Viru Kamu and another v. Dewandas Jhamandas (A I R 1940 Sind 158) and Ram Narain Sah and another v. Parmeshar Prasad Sah and others (A I R 1942 Pat. 414).

7. Out of these cases, the facts of the case reported in 19 Cr. L. J. 365 are somewhat similar to the facts in the present case. There, too, the second order was made some five weeks after the expiry of the first order, but a Division Bench of the Patna High Court did not actually interfere with that order as the order had already spent its force, and as it took the view that in the case before it there did not seem to be any deliberate intention on the part of the Magistrate concerned to usurp jurisdiction although it strongly disapproved of the use of section 144 of the Code of Criminal Procedure for anything in the nature of a permanent expedient. In their view, even if after the expiry of the first order under, section 144 of the Code of Criminal Procedure, the party restrained expresses an intention of again doing the same thing, a further order should not be made against him under section 144, but he should be proceeded against either under section 107 or sec tion 145 of the Code of Criminal Procedure, whichever may be applicable in the case, for, otherwise, the Division Bench took the view, that the clear intention of the Legislature expressed in sub section (6) of section 144 of the Code of Criminal Procedure could be nullified by any Magistrate by allowing only a day to elapse between the expiry of one order and the issue of another order.

8. The case reported in A I R 1942 Pat. 414 is, however, the only, case in which a learned Single Judge of the Patna High Court took the view that a Magistrate has no jurisdiction to make an order for the renewal of the original order under section 144 of the Code of Criminal Procedure, and further, that it is not open to him to evade subsection (6) of section 144 of the said Code by repeating orders under section

144. The case, however, was one in which the Magistrate had made an order in the following terms "The same order is passed again under section 144, Criminal Procedure Code, as I am satisfied that there is serious appre hension of breach of peace and immediate prevention is neces sary."

9. The case reported in 29 C W N 411 was a case in which on the date that the first ex parte order under section 144 of the Code of Criminal Procedure was made absolute, another fresh order was issued under section 144 of the said Code directed to the public at large, that is to say, it was also a case of a continu ance of a prohibitory order under section 144 before two months had expired, and in those circumstances a Division Bench of the Calcutta High Court took the view that it was virtually an exten sion of the period of two months fixed by subsection (6) of sec tion 144, and was, therefore, bad on that account.

10. In the case decided by the Full Bench of the Patna High Court and reported in A I R 1922 Pat. 435, the Full Bench also did not go to the extent of saying that the order would be without jurisdiction, but it deprecated the habitual and‑unjustifiable use of section 144 as a substitute for sections 107 and

145. The point that is now under consideration before me did not, however, fall to be considered by the Full Bench in the said case.

11. In the case reported in A I R 1940 Sind 158 also this question in this form was not directly in‑ issue. But a Division Bench of the said Court took the view that there was no justifi cation for periodical recourse to section 144 of the Code of Criminal Procedure on the plea of emergency in cases where the emergency exists only by reason of neglect of the authorities to take proper order when the facts first came to their notice. In other words, where it is a case in which proceeding under section 145 or proceeding under section 107 is a more appropriate remedy, section 144 should not be resorted to.

12. Having considered these decisions, I have no hesitation in saying that I too would strongly deprecate the use of an order under section 144 for making repeated prohibitory orders, for, that would be, in fact, an avoidance of the provisions of subsec tion (6) of section

144. But I find myself in a little difficulty in saying that the mere issuing of a second prohibitory order some time after the lapse of the first order is necessarily an order without jurisdiction, although it should not be resorted to, certainly in a case in which a proceeding either under section 107 or 145 of the Code of Criminal Procedure would be clearly indicated. In these circumstances, I am not prepared to hold that in the fact of the present case the second order under section 144 was either a deliberate attempt to evade the provisions of subsection (6) of section 144 or an order which can be regarded as a nullity. In the present case, 'as I have already indicated; immediately the fact of the existence of the previous order was brought to the notice of the Magistrate concerned, he withdrew the second order under section 144 of the Code of Criminal Procedure.

13. The question now is as to whether the violation of even such an order should or should not be held to be sufficient to justify a prosecution under section 188 of the Pakistan Penal Code.

14. The learned Advocate appearing in support of this Rule has, of course, contended that even if the order was merely illegal or improper, there could be no prosecution under section 188 of the Pakistan Penal Code. Section 188 of the Pakistani Penal Code, however, makes a violation of an order promulgated by a public servant lawfully empowered to promulgate such an order an offence. The ingredients of the offence, therefore, are; (1) that the, prosecution must show that there was an order promulgated ; (2) that it was promulgated by a public servant ; (3) 'that such public servant was lawfully empowered to promulgate; the same; (4) that such order directed the accused to abstain from a certain act or to take certain order; etc.; and (5) that the accused knew of such direction to him.

15. If the second order is made immediately after the expiry of the first order or so soon thereafter as to be really a continu ation of the first order, that would be clearly in violation of the; provisions of subsection (6) of section 144 of the Code of Crimi nal Procedure, and it could then be legitimately said that the Magistrate was not legally empowered to promulgate such an, order. But if there is no such deliberate intention to evade the provisions of subsection (6), and the second order is made sometime after the expiry of the first order in ignorance of the fact that such an order had previously been made, the order would not be an order which the public servant, namely, the Magistrate was not lawfully empowered to promulgate, although it may be an order which may be liable to be set aside on the Magistrate being properly appraised of the existence of the previous order, and the violation of such an order, even though it is not a strictly proper order, would still, in my opinion, be sufficient to justify a prose cution under section 188 of the Pakistan Penal Code. I find support for this view also from a decision of the Calcutta High Court in the case of Parbutty Charan Aich.v. Queen Empress (I L R 16 Cal. 9), where a Division Bench of the Calcutta High Court held that where an order under section 144 had not been served in accor dance with the terms of section 134 of the Code or a notification issued in the Gazette prescribing the method of such service, it did not follow that the order was a nullity in consequence of that, and when the order has been duly made and promulgated ; even though not strictly in accordance with the terms of the law ; and has been brought to the actual knowledge of the persons sought to be affected by it, then that is sufficient to bring the case under section 188 of the Pakistan Penal Code. In this view of the matter, I do not think that this ground alone is a sufficient ground upon which I should interfere in the present case.

16. The learned Advocate also sought to assail the finding as the service of the order by drawing my attention to the defects in the evidence. In revision, however, it is not open to him to challenge a concurrent finding of fact of the Courts below particularly when there is some evidence to support the said finding.

17. The learned Advocate also sought to raise the question of the jurisdiction of the Magistrate who tried the present peti tioners to take cognizance of the matter, by referring me two pas sages in the judgment of the trying Magistrate where it is said that he believes that the Sub‑divisional Officer took cognizance of the matter. I do not think that the belief of the Magistrate con cerned has any relevant bearing on this point. The learned Assistant Sessions Judge has, in my view, rightly remarked that the cognizance was taken by the Magistrate himself who tried the case, and not by the Sub‑divisional Magistrate, and even if the said Magistrate was not competent to take cognizance of this offence, that was merely an irregularity, which was cured under section 529 of the Code of Criminal Procedure.

18. These are all the points that have been urged in support of this Rule, and having regard to the view I have taken, this Rule is discharged. K. B. A. Rule discharged.