1. The conviction in this case is under Section 188 of the Indian Penal Code, which says that whoever, knowing that, by an order promulgated by a public servant lawfully empowered to promulgate such order, he is directed to abstain from a certain act, disobeys such direction, shall be liable to certain punishment. Now, the order which the accused in the present case was charged with disobeying was an order by the District Magistrate under Section 144 of the Code of Criminal Procedure. It was an order made with relation to a hat It appears that there was an old-established hat, and that certain persons, acting for, or with, one Gobinda Charan Sahu opened a new hat in the vicinity of the old one, and held it on the same days. This action, in the opinion of the Magistrate, made a serious breach of the peace imminent; and therefore having made the necessary inquiries he passed this order. [After reading the order (Ante, p. 10), His Lordship continued]:
2. It has been found that notwithstanding that order the new hat was nevertheless held on Tuesdays and Saturdays; and the present accused has been convicted of disobeying that order. The fact found is that he sold goods in the hat, not that he was a proprietor of the hat, or was one of those who promoted or managed or had any control of it, but simply that as a trader he sold goods at the hat.
3. Two points have been raised before us. The first is, whether there was any such service or promulgation of the Magistrate's order as to bring the case within Section 188. With regard to that it would appear that the mode of service was not in accordance with the Criminal Procedure Code, because Section 144 says that a Magistrate may, by a written order stating the material facts of the case and served in manner provided by Section 134, direct any person to abstain from a certain act, and so forth. And what Section 134 says is, that 'the order' that is an order under Section 133, 'shall, if practicable, be served on the person against whom it is made in manner herein provided for service of a summons. If such order cannot be so served, it shall be notified by proclamation, published in such manner as the Local Government may by rule direct, and a copy thereof shall be stuck up at such place or places as may be fittest for conveying the information to such person.' In the present case, there was evidence probably that there was personal service on Gobinda Chunder Sahu. But there was no personal service on the present accused; nor was the service or promulgation in accordance with Section 134. The Bengal Government has gazetted an order to the effect that, when personal service cannot be made, the order shall be notified by beat of drum at the place in question. That was not done in the present case. Therefore the notice was not served according to the directions of the Criminal Procedure Code as amplified by the order in the Gazette. But I do not think that that is fatal in the present case, because I do not think that it is necessary for us to read the direction as to the mode of service as going absolutely to the validity of the order. I think we may fairly say that the terms of Section 134 and the notification in the Gazette are directory, and ought to be followed, and that it is an irregularity when they are not; but it does not follow that the order is a nullity in consequence, and I think that when the order has been duly made and promulgated, although not strictly in accordance with the terms of the law, and has been brought to the actual knowledge of the person sought to be affected by it, that is sufficient to bring the case under Section 188 of the Indian Penal Code. The first objection therefore seems to me to fail.
4. The other objection is more serious, and goes much irfbre to the solid merits of the case. It is this, that what the present accused is found to have done is no breach of the Magistrate's order. It is obvious that before you can proceed criminally against a man for breach of an order you must show that the order clearly and unequivocally prohibits the thing which he is said to have done. If the order be ambiguous and open to two interpretations, you must adopt the one most favourable to the accused, and not the other, In the present case the earlier part of the Magistrate's order shows, we think pretty clearly what he was thinking of when he came to the conclusion that the ' new hat should be prohibited. He was thinking of the action of Gobinda Chunder Sahu, and of the people who were acting for or with him, that is to say, he was thinking of the conduct of persons who established the hat, opened it, managed it and tried to bring people to it to buy and sell; find having described their action as likely to induce a serious breach of the peace, he proceeds to prohibit Gobinda Chunder Sahu and all other persons from holding the hat. In that connection it is almost impossible to read the words ' holding the hat ' in any other sense than that which we have described, that is, in the sense of holding as owner or manager. It is almost impossible to read the words as including the conduct of people who do not hold the hat as owners an,d managers, but who frequent it as buyers or sellers. But if we are wrong in bhis interpretation of the words, at any rate it is clear that the order, look' at it in the most favourable light for the prosecution, is ambiguous, and c not clearly and unmistakably prohibit traders from buying and selling in the (sic).
5. That being so, the conviction cannot stand, arid must be set aside.