1. This is a reference by the learned Sessions Judge of Burdwan recommending that the prosecution of the petitioner, for an offence punishable under Section 188, I.P.C., be quashed. The facts are these. A petition asking for action under Section 144, Criminal P.C., was filed by several persons before the Sub-divisional Magistrate of Katwa. He sent it to the President of the Union Board for report. On receipt of the report he passed an order on the petitioner under Section 144, Criminal P.C., directing him to cut a bundh or to show cause against the order. The petitioner appeared and showed cause. The Magistrate was not satisfied with the explanation and declined to cancel the order. The petitioner failed to comply with it and has been prosecuted under Section 188, I.P.C. The first ground upon which the learned Judge bases his recommendation is that an order passed in this form is illegal. Now it is clear that such an order must to some extent be infructuous, inasmuch as a failure to comply with it before the time for showing cause had elapsed would not be punishable; but we are not prepared to go further than that and to say that it was without jurisdiction. The learned Judge relies upon the case reported in Emperor v. Bhola Giri : AIR1936Cal259 . That was a decision of our learned brother Mitter, J. It appears that in that case the cause shown by the person charged under Section 188, I.P.C., had never been rejected, with the result that there never was any absolute order made against him. In the present case the order was passed on 28th September 1936. The explanation of the petitioner was rejected on 12th October 1936 with the result that with effect from that date there was an absolute order directing the petitioner to cut the bundh. In our opinion the Magistrate's order was made with jurisdiction.
2. Then in the second place the learned Judge is of opinion that the order was bad in view of the decision reported in Kusum Kumari Debi v. Hem Nalini Debi : AIR1933Cal724 . Now that was a very peculiar case. The petitioner had started to build a wall and the foundations had been dug. The Magistrate ordered her not to build the wall and then went on to direct her to fill up the hole made for the foundations. Now it is clear that the action alleged to be likely to cause a breach of the peace was the attempt to build the wall; the omission to fill up the hole could not possibly have that effect.
3. We see no reason to suppose that case was not rightly decided; but the observations made by the learned Judges must be read with reference to the peculiar facts. By its very terms Section 144 empowers the Magistrate to direct a person to take certain order with certain property in his possession: in the present case the Magistrate had jurisdiction to direct the petitioner to out the bundh. We accordingly reject this reference.
4. I agree.