1. This is an application in revision by two persons, Bishan Datt and Radha Kishan who have been convicted by the Courts below of an offence under Section 188, Penal Code and have been fined Rs. 100 each. The facts of the case may briefly be stated as follows:
2. On 22-3-1941, in the course of a proceeding under Rule 15 of the Kumaun Nayabad Rules the Deputy Commissioner in charge of the Kumaun Division passed an order directing the two applicants to demolish and remove a cow shed which they had built on certain benap land. The proceeding which resulted in this order was instituted upon a report made by one Badri Datt. The applicants being aggrieved by that order filed a. regular suit in the civil Court for a declaration that they were entitled to occupy the land in dispute as a valid extension. Their suit was dismissed by the first Court but was decreed on appeal by the Deputy Commissioner in charge of the Kumaun Division. The Board of Revenue, however, finally dismissed the suit by its order, dated 27-6-1944. Thereupon, the Sub-Divisional Officer of Ranikhet issued a notice to the applicants on 21-7-1945, giving them three weeks' time for carrying out the order which had originally been made on 22-3-1941. The prosecution case was that the applicants failed to comply with that order and thereupon a complaint under Section 188, Penal Code, was lodged against them in December 1945. Upon that complaint the applicants have been convicted and sentenced as mentioned above; hence the present application in revision. The application has been pressed mainly of the ground that the order in question, which is said to have been disobeyed by the applicants, was not an order contemplated by Section 188, Penal Code. It is contended that Section 188, Penal Code, is confined to orders promulgated by public functionaries for public purposes and in support of this contention reliance has been placed upon several cases, e.g., in In the Matter of Chandra Kanta De ('81)6 Cal. 445, Mammali v. Kutti Ammu 3 A.I.R. 1916 Mad. 640, Emperor v. Mallappa 2 A.I.R. 1915 Bom. 22 and Hira Lal v. Emperor ('21) 8 A.I.R. 1921 Oudh. 123. Having carefully considered the language of Section 188, Penal Code, I find that the contention is sound and must prevail. The word 'promulgated' in Section 188 is, in my judgment, very significant. 'An order promulgated by a public servant' cannot refer to an order made by a public servant in the course of a civil proceeding between two parties. It has further to be noted that the disobedience of the 'order promulgated by a public servant', which is made punishable by Section 188 must be a disobedience which causes or tends to cause obstruction, annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully employed. This also clearly shows that the orders contemplated by Section 188, Penal Code, are orders made by public functionaries in the public interest. The order of 22-3-1941, which is alleged to have been disobeyed in the present case, was not an order falling within the purview of S 188, Penal Code.
3. The result, therefore, is that I allow this application in revision and set aside the conviction and sentence of the applicants Bishan Datt and Radha Kishan. The fine, if any, paid by them shall be refunded.