1. This is an appeal by the Local Government under Section 417, Criminal P. C, and is directed against an order of the Deputy Magistrate, First Glass of Berhampur, district Murshidabad, dated 13th January 1933, acquitting the accused Khodabaksha Shah, under Section 245, Criminal P. C., of an offence punishable under Section 188, I. P. C., that is, disobedience of an order duly promulgated by a public servant. The order which was promulgated in this case and which was a valid and operative order, so far as the respondent was concerned, was made by a competent authority under Section 133, Criminal P. C. The fact of the promulgation of the order made under Section 133 was not denied, and was duly proved before the trying Magistrate in the case. That a public servant can promulgate an order lawfully empowered to promulgate the same is not denied before us. On the evidence to which reference has been made by the learned Magistrate in his order of acquittal, there was clearly a direction on the accused to abstain from doing a certain act, and the accused certainly knew of that direction to him; there was on the facts proved in the case, disobedience of the direction. In the circumstances, the order of acquittal, passed by the learned Magistrate in this case under Section 245, Criminal P. C, cannot in our judgment, be supported.
2. The defence raised by the respondent Khodabaksha related to the validity of the final order made in the proceedings under Section 133. Such a question could not be raised at the trial of the accused, for an offence under Section 188, I. P. C. A point appears to have been raised that the respondent Khodabaksha was not alone responsible for the obstruction, as he had another cosharer, who had not been made party to the proceedings under Section 133, in which the question of obstruction was enquired into. This was not a case which was made before the Court at any previous stage, nor was it a case made before the Court which passed the order under Section 133. In view of the order promulgated by a competent authority under Section 133, and in view of the disobedience of the order by the accused against whom the order was promulgated, he was liable to conviction under Section 188, I. P. C.
3. Our order therefore is that on the facts and in the circumstances of the case, and, as we are clearly of opinion that the disobedience of the order under Section 133 tends to cause riot, we allow the appeal and impose a fine of Rs. 500 on Khodabaksha, and direct that in default of payment of the fine, the said Khodabaksha will undergo rigorous imprisonment for six weeks.