1. This rule must, in my opinion, be made absolute not on the ground that the petitioner had no knowledge of the order in question, (for I entirely agree with the Courts below that he had such knowledge), but on the ground that the order for the disobedience of which the petitioner has been convicted had not been duly promulgated. Section 144, Criminal P.C., lays down that an order under that section shall be served in the manner provided by Section 134, and Section 134 says that such an order shall, if practicable, be served on the person for whom it is made in a manner provided for service of summons. It is only if the order cannot be served in the manner provided for service of summons that the publication of a proclamation under Sub-section 2, Section 134 may be resorted to. The provisions regarding service of summons are found in Sections 68 to 74, Criminal P.C.S. 69 lays down that a summons shall, if practicable, be served personally. Section 70 lays down that where a person summoned cannot by the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with some adult male member of his family or in a Presidency town with his servant residing with him. Section 71 lays down that if service in the manner mentioned in Sections 69 and 70 cannot by the exercise of due diligence be effected, the summons shall be served by affixing it to some conspicuous part of the house or homestead in which the person summoned ordinarily resides.
2. What happened in the present case was this. The constable who went to the locality to serve the order could not find the petitioner and he forthwith instead of resorting to the procedure laid down in Sections 70 and 71, caused the order to be proclaimed by beat of drum and by attaching a copy thereof to a tree. He also took the precaution by obtaining the signature of one Kinu Mondal, who is said to be a relative and a neighbour of the petitioner, and himself one of the persons against whom the order was directed. The procedure adopted by the constable appears to have been substantially in compliance with the provisions of Sub-section (2), Section 134. But it was not, in my opinion, open to the constable to resort to that procedure, inasmuch as he had not made any attempt to serve the order through any relative of the petitioner as laid down in Section 70, or by affixing to the petitioner's house as laid down in Section 71. The constable is of course not to blame in this matter for it was not to be expected that he would be acquainted with the provisions of the Criminal Procedure Code relating to the service of an order of the kind which is at present under consideration. He ought to have been given clear directions on the point and the result of the failure to give him such directions has been that the order was not served in the manner required by law.
3. It is further a matter for surprise that the Magistrate at the time of issuing the order, and the local Police Officer when he received the order, did not take any steps or direct any steps to be taken for the purpose of enforcing the order in the locality, and for the purpose of preventing the mela, the holding of which the order purported to prohibit, from being held. The rule is made absolute. The conviction and sentence are set aside and the petitioner is acquitted. The fine, if paid will be refunded.