1. This is a petition for setting aside a conviction under Section 188, I. P. C. and the sentence of fine, passed by the first Class Magistrate of Puri.
2. The petitioner is a Member of the Orissa Legislative Assembly. On 22-1-56 in consequence of the agitation against the report of the States Reorganization Commission, acute distrubances, arose in the town of Puri resulting in the burning of the Railway Station, attack on the houses of the District Magistrate and the Superintendent of Police, and commission of various acts of violence on other public buildings. On 23-1-56 the Subdi-visional Magistrate issued an order under Section 144, Cr. P. C., prohibiting an assemblage of 5 or more persons within the municipal area. The order was in force for seven days. Again, on 29-1-56 he passed another order to the same effect which was to remain in force for 7 days, i.e. from 30-1-56 to 5-2-56 as in his opinion, the situation in the locality continued to remain the same and there was still apprehension of disturbance of public tranquillity. The order was duly promulgated at various public places in Puri Town. The prosecution case is that on 31-1-56 in contravention of this order the petitioner, at about 7 P. M. attended a meeting of about 40 to 50 persons at Lion's Gate Puri and there read aloud a printed pamphlet (Ext. 3)in which the various acts of oppression committedby the authorities were mentioned; and it was further stated that the repressive actions of the Government were undemocratic and inhuman and that everyone should protest against the same in a peaceful and non-violent manner, He was imme-diately taken into custody for an offence under Section 188. I. P. C., and the present case against him was started.
3. The facts are practically admitted, and the main question for consideration is whether the offence under Section 188, I.P.C., can be said to have been established.
4. Mr. A. Das, on behalf of the petitioner, contended that, on the evidence of the prosecution witnesses themselves, it was clear that on 30-1-56 the situation in Puri town had become normal, that there was no apprehension of any further disturbance of public tranquillity, and that the pamphlet (Ext. 3) read out by the petitioner specially exhorted the public to protest in a peaceful and non-violent manner. Hence, according to Mr. Das, the disobedience by the petitioner of the order under Section 144. Cr. P. C., had no tendency to cause a riot or affray or to disturb public tranquillity.
5. The ingredients of the offence under Section 188, I.P.C., as described in that section would, show that a mere disobedience of an order under Section 144, Cr. P. C. would not render a person liable to punishment under that section. It must be further shown that such disobedience had either of the two tendencies described in the second and third paragraphs of that section i. e., it must tend to cause obstruction, annoyance or injury to any person lawfully employed or it must tend to cause danger to human life, health or safety or to cause riot or affray: See Ram Gopal Daw v. Emperor, ILR 32 Cal 793: Parmeswar Rai v. King Emperor, 23 Cr LJ 381: (AIR 1922 Pat 84) (B); Mt Lachmi Devi v. Emperor, AIR 1931 Cal 122(C) and N. G. Sabde v. The Crown, AIR 1950 Nag 12 (D). It is true that a riot or affray need not actually follow such disturbance so as to make a person liable under that section, but there must be such a tendency. Doubtless, this tendency has to be inferred from the proved facts and circumstances of each case and is not capable of direct proof.
6.The learned trial Court was fully aware of these essential ingredients of the offence under Section 188. I. P. C., but he thought that such petitioner was a prominent man of Puri town, besides being a member of the Orissa Legislative Assembly, his words would carry great weight and that the contents of the pamphlet were all of a provocative nature. He, therefore, thought that tile speech of the petitioner had a tendency to disturb public tranquility.
7. I have carefully gone through the evidence on record and I am unable to agree with the find. ing of the lower Court. The most important witness in this case is the town Sub-Inspector of Police, Puri, Shri P. C. Misra (P. W. 2) who was present at the meeting on 30-1-1956 when the offending pamphlet was read out by the petitioner. He says that there was a gathering of about 40 to 50 persons only. In cross-examination he stated that when the petitioner read out the pamphlet he did not notice any excitement in the people attending the meeting. Similarly, another prosecution witness, R. N. Mohapatra (P. W. 7) who is a teastall-holder near the Lion's Gate has admitted, in cross-examination, that there was no disturbance in Puri town prior to the reading of the pamphlet by the petitioner and the situation was normal. Another prosecution witness, viz. P. W. 8 has also stated that no impression was created in his mind at the sight of the gathering at the Lion's Gate. In view of the evidence adduced by the prosecution witnesses themselves, it is difficult to bslieve that a mere reading of the pamphlet before the gather-ing of 40 or 50 persons on 30-1-56 had the tendency to cause rioting or affray. On the other hand, the fact that the petitioner is a prominent man of Puri and a member of the Orissa Legislative Assembly, might have a salutary effect on the audience, especially when they were cautioned to protest In a 'peaceful and non-violent way'. It is true that the situation in Puri town was uncontrollable on 22-1-1956, but soon afterwards, due to the drastic action taken by the authorities, conditions had become practically normal on the 30th as stated by P. W. 7. No untoward incident took place on that day prior to the reading of the pamphlet by the petitioner. The contents of the pamphlet, though very severe in criticising the measures taken by Government, contained a special exhortation to the people to behave in a peaceful and non-violent manner. The criticism of the repressive action of the Government did not appear to have created any excitement in the persons attending the meeting as admitted by P. W. 2. Hence, I would in disagreement with the learned lower Court hold that the action of the petitioner in reading out the pamphlet did not produce any of the tendencies described in Section 188, I. P. C.
8. The conviction and sentence are, therefore, set aside, and the petitioner is acquitted.