Blair and Alkman, JJ.
1. Jasoda Nana has been convicted of an offence made punishable under Section 188 of the Indian Penal Code. That section is couched in the following words:--'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 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 ' under the latter portion of the section. Jasoda Nand is the occupant of the house No. 15, Cawnpore Road. The house, it appers, stands in its own compound some little distance from the public road and is inhabited by a number of families, and the servants' houses in the compound are also inhabited by a number of persons. An order was made under Section 133 of Act No. X of 1882, upon information, by a Magistrate, called in that section a conditional order, requiring jasoda Nand to effect certain repairs in the house No. 15, Cawnpore Road. The order was served upon Jasoda Nand, and he did not adopt either of the courses admissible under Section 135 of the Act. He did not perform the act directed by the Magistrate: he did not appear in accordance with the order to show cause against the same, or apply to the Magistrate by whom it was made to appoint a jury to try the propriety of the order. An order absolute was made under Section 136. Jasoda Nand was then put upon his trial for the offence specified in Section 188 of the Indian Penal Code and fined Rs. 50. The case was brought to the attention of the Sessions Judge of Allahabad, who, being of opinion that the conviction could not be maintained, reported the case to this Court.
2. Mr. Ryves, the Government Advocate, has appeared to support the conviction, and Mr. Sorabji to dispute its propriety. Mr. Ryves in his first contention submitted to the Court that it cannot go behind the order absolute made under Section 136 of Act No. X of 1882. In support of his. contention he has cited to us the case of Queen-Empress v. Narayana I.L.R. 12 Mad., 475, and the case of Queen-Empress v. Bishambar Lal I.L.R. 13 All. 577. In the case reported in the Madras High Court the subject of the order was an open tank or well. The well or tank was in a publio street, and the safety of the public required that it should be fenced. The subject-matter of that order then fell well within the jurisdiction of the Magistrate, and within the powers conferred upon him by Section 133 of the Criminal Procedure Code and the succeeding sections. The ground upon which the conviction was impeached in that case was not that the order made was one of such a nature that the Magistrate was not empowered by the section of the Criminal Procedure Code to make it: the only ground of contention was that the person upon whom the order was served was not the person who was responsible for the existing state of things, or who ought to have been made the subject of such order. The Court held, that the person convicted could not go behind that order: it held so having expressly noted that the order was one well within the power of the Magistrate who made it. That finding appears to us not inconsistent with the provisions of Section 136 of the Code of Criminal Procedure. The case cited in 13 Allahabad is in substance identical with the Madras case. There is no doubt that the order was an order made in respect of one of the invasions of the public right set forth in Section 133. The contention was that such order was made against the wrong person. Following the ruling reported in 12 Madras, it was held that it was not competent for the person convicted to question the order made against him.
3. We cannot, however, acquiesce in the expressions, needlessly large for the decision of the case then before the Court which find place in the judgment. It appears to us, applying to Section 188 of the Indian Penal Code that strict construction applicable to penal provisions, that it is essential in order to justify a conviction to show that the order has been promulgated by a public servant lawfully empowered to promulgate such order. Now in this case and from that point of view we have to consider whether the public servant making the order in question was lawfully empowered to promulgate that order. Chapter X of the Code of Criminal Procedure, in which appear the provisions relating to such orders, is headed ' Public Nuisances,' and it enumerates certain forms of invasions of public rights which would be regarded by the law of England as falling under the definition of commune nocumentum. It provides, first, for the removal of any unlawful obstruction from any way, river or channel which may be lawfully used by the public; secondly, for the prohibition of any trade or of the keeping of any goods or merchandize by reason of their being injurious to the health or physical comfort of the community; thirdly, for the prevention of the construction of any building or the disposal of any substance as likely to occasion conflagration or explosion. The fourth clause is the one under which the order in question purports to have been made. It deals with the case in which 'any building is in such condition that it is likely to fall and thereby cause injury to persons living or carrying on business in the neighbourhood or passing by,' in consequence of which its removal, repair or support is necessary. The last case provided for is where any tank, well or excavation adjacent to any such way or public place should be fenced in such a manner as to prevent danger arising to the public. It appears manifest to us that, apart from the heading, which may possibly form no part of the enactment, the scope of this section is plainly limited to injuries arising or likely to arise to members of the general unascertained mass of the public. The persons who under the clause require protection are 'persons living or carrying on business in the neighbourhood, or passing by.' It appears to us that it would be straining the meaning of the words to hold that the clause applies to persons living actually in the alleged dangerous building or in the servants' houses in the compound belonging to it. It seems also to us, that it would be an unnatural use of the words ' passing by ' to include in it persons going to or from the house or about it for their private business or pleasure, or in the exercise of their private and not of their public rights. In our opinion the words used are not sufficiently comprehensive to include the case of the person who has been convicted, or to justify or make legal the order of the Magistrate in relation to the building in Jasoda's occupation. It may well be, as the Magistrate in his explanation argues, that Section 44 would have justified some such order as the order made in this case; but the scope of that section is different from, and far larger than, that of Section 133.
4. We hold then that the order made in this case by the Magistrate was not an order which the Magistrate was lawfully empowered to promulgate within the meaning of Section 188. We therefore set aside this conviction and order the fine, if paid, to be refunded.