Pratt and Handley, JJ.
1. We think this Rule must be made absolute.
2. In the first place, although the Magistrate acting under Section 144 of the Code of Criminal Procedure is empowered to make an order prohibiting a person from holding a hat on certain specified days of the week, the terms of the law do not empower a Magistrate to make a direction that the hat shall be held upon certain days, leaving the party no option to hold his hat upon some other days than those on which his rival holds his hat. The Magistrate explains that the days of the week were fixed to suit the convenience of the petitioner, and in accordance with the previous arrangement, in which he had acquiesced. Whether that is so or not we think the Magistrate's order is technically wrong, not being covered by Section 144 of the Code. Apart from this there seems to be no evidence on the record that disobedience of the Magistrate's order is likely to, lead to a breach of the peace. That some evidence on the point should be forthcoming in order to support a conviction under Section 188 of the Indian Penal Code was laid down in the case of Brojo Nath Ghose v. Empress (1900) 4 C.W.N. 226. On this ground also the conviction appears to be not warranted by law.
3. We therefore make the Rule absolute and set aside the conviction and sentence.
4. We have been informed that the petitioner has now voluntarily conformed with the views of the Magistrate and has altered the days of his hat so as to prevent any possible collision with persons frequenting the rival hat. He has been well advised to do so, because if he proceeded to hold his hat on the same days as the rival hat, it would still be open to the Magistrate to make a proper and legal order under Section 144 of the Code, which the petitioner would be bound to obey on pain of punishment under Section 188 of the Indian Penal Code.