1. In this case the applicant Chunilall Motilall was fined Rs. 50 by the Additional Chief Presidency Magistrate of Calcutta under Section 188, I. P. C. It appears that on 11th July 1931 the Additional Chief Presidency Magistrate made an order under Section 144, Criminal P. C, directing the present applicant to abstain from constructing or proceeding with the construction of a piece of work described as a masonry ledge on a common passage leading from Raja Naba Kissen Street to premises Nos. 23-1 and 23-2, Raja Naba Kissen Street, and other premises. That order was served upon him on the same day. A date was fixed by the Additional Chief Presidency Magistrate, namely, 27th July 1931, for the hearing of such objections as the present applicant might have to the order which had been made on 11th July 1931. But in the meantime, on 20th July the present proceedings were instituted on the allegation that Chunilall Motilall had continued work on the masonry ledge, after the order of 11th July 1931, had been served upon him on that day.
2. The learned Presidency Magistrate who heard the present case under Section 188, I. P. C., was satisfied as to the facts, as regards actual disobedience to the order and then he had to decide the question whether the conditions laid down under para. 3, Section 188, I. P. C., had been fulfilled. He seems to have come to the conclusion that the conduct of the present applicant was such that it would tend to cause an affray. I think how-over that he has adopted a wrong reasoning when he says
as regards affray, such conduct always tends to cause affray specially when it is in open defiance of a Magistrate's order, I, therefore hold that the conduct of the accused tended to cause an affray.
3. The learned Magistrate seems to have argued from the general to the particular whereas he ought to have come to the conclusion from the actual facts of this case as to whether or not there was a tendency for an affray to be caused. Apart from that aspect of the matter however, there is one more important one which would seem to render it right to set; aside this order. It is to be observed that Section 188 reads as follows:
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, or to take certain order with certain property in his possession or under his management disobeys such direction shall--under certain conditions mentioned--be punished.
4. I doubt very much whether it can ,rightly be said that the particular order made in this case under Section 144, Criminal P. C., can rightly be described as an order (''promulgated' by a public servant lawfully empowered to promulgate such order seeing that the order in question was made upon an ex parte application by one Nripendra Nath Basu and subsequently privately served upon the present applicant. Having regard to the view I take with regard to the learned Magistrate's finding on a question whether the applicant's conduct tended to cause an affray, it is not necessary however that I should decide the question whether Section 188, I. P. C., can properly be applied for breach of a particular order of this character made under Section 144, Criminal P. C. The matter in dispute between the parties is really one which ought to be determined by a civil Court. The Rule is made absolute and the order of the Additional Chief Presinency Magistrate dated 9th October 1931 is set aside.