1. The Public Prosecutor withdraws the appeal as Benson against J. South and Solomon. The other two persons Mamilla Reddi and Rajendram were acquitted by the Stationary Sub-Magistrate of the offence alleged against them, viz., that they had disobeyed an order promulgated by Government under the Epidemic Diseases Act (III of 1897), The reason given by the Sub-Magistrate was that the prosecution required the previous sanction of the public servant concerned under Section 195, Criminal Procedure Code, which public servant he held to be the public servant who promulgated the order.
2. The only sanction given for the prosecution was that of the Chairman of the Municipality in which the order was broken and the Sub-Magistrate held that the Chairman was not the public servant who promulgated the order and had not shown that he was specially empowered to give the sanction. The Joint Magistrate subsequently acquitted these persons on the ground that they had been already acquitted by the Sub-Magistrate.
3. Government appeals against these acquittals.
4. We are of opinion that the order of the Sub-Magistrate cannot be upheld, Section 195, Criminal Procedure Code, read with Section 188, Indian Penal Code, does, no doubt, require that no Court shall take cognizance of an offence committed by disobeying an order promulgated by a public servant, except with the previous sanction of the public servant concerned or of some public servant to whom he is subordinate.
5. In the case before us, the order, for disobeying which the charge is brought, was not promulgated by any public servant but by Government, The Chairman cannot be said to have 'promulgated' the order. He merely republished in his Municipality the order promulgated, i.e., formally made and issued by Government under the Epidemic Diseases Act. The order not having been promulgated by any public servant, no sanction is required as a condition precedent to prosecution for disobeying the order. We must therefore set aside the acquittals, and direct the Stationary Sub-Magistrate to restore the case to his file as against Mamilla Reddi and Rajendram and dispose of it according to law.