1. Two points have been raised on behalf of the petitioners,--first, that the conviction of the petitioners by the Magistrate is invalid upon the ground that the Magistrate, who convicted the petitioners of an offence under Section 188 of the Indian Penal Code--the offence being a breach of an order made under Section 144 of the Criminal Procedure Code--is the same Magistrate who made the order under Section 144 of the Criminal Procedure Code; secondly, that the order which purports to have been made under Section 144 of the Criminal Procedure Code was beyond the powers conferred by the section, and was therefore made without jurisdiction. Section 487 of the Criminal Procedure Code provides as follows: (1) Except as provided in Sections 477, 480 and 485, no Judge of a Criminal Court or Magistrate other than a Judge of a High Court and the Recorder of Rangoon shall try any person for any offence referred to in Section 195 when such offence is committed before himself or in contempt of his authority or is brought under his notice as such Judge or Magistrate in the course of a judicial Proceeding; (2) nothing in Section 476 or Section 482 shall prevent a Magistrate empowered to commit to the Court of Session or High Court from himself committing any case to such Court. The words 'in contempt of his authority' are general, and are not to be construed as limited to oases where the alleged offence is in the nature of a 'contempt of Court.' It is to be observed that chapter X of the Penal Code, the chapter in which Section 188 occurs is headed 'of con-tempts of the lawful authority of public servants,' whilst the language of Section 144 of the Criminal Procedure Code which gives jurisdiction to a Magistrate to direct any person to 'abstain from a certain act or to take certain order with certain property' is the same as the language of Section 183 of the Indian Penal Code, which constitutes a breach of an order duly promulgated by a public servant an offence punishable under the latter section.
2. On the construction of the sections of the Penal Code and of the Criminal Procedure Code referred to above we are of opinion that a Magistrate who makes an order under Section 144 of the Code of Criminal Procedure is not competent to try a person for an alleged offence under Section 188, Indian Penal Code, the offence being an alleged breach of the order made under Section 144, Criminal Procedure Code. This is also the view taken by the Bombay High Court in Reg. v. Ranchhod Dayal 10 Bom. H.C.R. 424 a case decided under the Code of 1872 the material provisions of the law being the same then as now.
3. As regards the second point, it seems to us that the order made on 11th April 1900 was within the powers conferred by Section 144 of the Criminal Procedure Code. In form, no doubt, it may be said that the order is not one to abstain from a certain act. In substance and effect, however, we think the order was an order directing certain persons to abstain from certain acts, and that being so it cannot be said to have been made without jurisdiction.
4. We think that by reason of Section 487 of the Code of Criminal Procedure the Magistrate had no jurisdiction to try the petitioners. We must accordingly set aside the conviction and direct that the petitioners be retried before the District Magistrate or any other competent Magistrate whom the District Magistrate may appoint.
5. The fines, if paid, will be refunded.