1. This is a reference under Section 438 of the Code of Criminal Procedure.
2. A motion was made on December 10, 1934, and the Sub-Divisional Officer of Madaripur, summoned the petitioner Lokendra Lal Pal Choudhuri under Section 188 of the Indian Penal Code, for not obeying an ex parte order of injunction made by the Deputy Magistrate on October 12, 1934, under Section 144 of the Code of Criminal Procedure. The Sub-Divisional Officer also started a proceeding under Section 107 of the Code against the petitioner, because he apprehended that the petitioner would commit a breach of the peace regarding a Jetty which was the subject-matter of dispute in the proceedings under Section 144, Criminal Procedure Code.
3. The Sessions Judge recommends that all the three orders should be set aside. The first order under Section 144 was that the petitioner should remove the Jetty which had been already completed on October 5, 1934. This order the Sessions Judge considers illegal and we agree with him.
4. In the case of Kusum Kumari Dzbi v. Hem Nalini Deli : AIR1933Cal724 it was decided that under Section 144 of the Criminal Procedure Code, a Magistrate is entitled to make a restrictive order preventing the opposite party from doing an act; but the section does not enable him to make a mandatory order directing the opposite party to do some act.
5. In the case of Emperor v. B.N. Sasmal : AIR1931Cal263 this Court held that the words 'to abstain from a certain act' in Section 114 of the Criminal Procedure Code, do not empower Magistrates to make a positive order requiring a person to do a particular thing.
6. In In the matter of Ghulam Durbzsh 10 WR 36 Cr there is a case under the corresponding Section 62 of the old Code to a similar effect.
7. This order being without jurisdiction, obviously the subsequent order under Section 188 was without jurisdiction. Moreover, the Sub-Divisional Officer had no power to take cognizance of a case under Section 188, because the offence complained of was disobedience of his own order. He must make a complaint under Section 195; Section 487 of the Criminal Procedure Code prohibits the trial of the case under Section 188 in these circumstances by the Magistrate.
8. With regard to proceedings under Section 107, the learned Sessions Judge says that no application about apprehension of a breach of the peace was made regarding a completed jetty. It is not clear from the record whether the dispute was about one jetty or a jetty plus extensions to it. But in any case the learned Sessions Judge was of opinion that at the time he made the reference, there was no apprehension of a breach of the peace. It is to be borne in mind that the proceedings under Section 107 were started in November last and the reference was made by the learned Sessions Judge so far back as January 18 of this year and it is probable that the local conditions had considerably altered in the meantime. The result is that all these orders are set aside. If now there is any immediate apprehension of a breach of the peace by any of the parties, further proceedings can be instituted against one or both.
9. The reference is accepted.
10. I agree.