DEBABRATA MOOKERJEE, J.

( 1 ) THE three petitioners in this case were convicted under Section 188, Penal Code and sentenced each to pay a fine of Rs. 25/-, in default to suffer rigorous imprisonment for one month.

( 2 ) THE disobedience charged related to an order under Section 144, Criminal P. C. which had been made on 24-8-1954 by Sri B. N. Poddar, a Magistrate of the First Class, Uluberia. In the absence of the Sub-Divisional Magistrate, Sri Poddar was in charge that day of his file and in that capacity made the ex parte order requiring the petitioners not to enter the disputed land or disturb the possession of one Annada Prosad Dalui and others, who were the first party, to the proceedings. The dispute related to possession of a portion of plot No. 2844 of khatian No. 299 in mouza Kankrole. The order was served on the petitioners on 26-8-1954 and on the very next day, it was alleged the petitioners trespassed upon the land in violation of the order. On 30-8-1954 an application was filed by Annada Prosad Dalui in the Court of the Sub-Divisional Magistrate of Uluberia complaining of disobedience to the order which had been promulgated on the 24th. After a preliminary inquiry it having appeared to Sri B. N. Poddar that the order he had made on 24-8-1954 had been disobeyed, a complaint was filed against the petitioners under Section 188. Penal Code and they were eventually tried before another Magistrate of the First Class who in the end convicted and sentenced the petitioners as stated above.

( 3 ) THE petitioners pleaded innocence and the defence was that the order was not a proper order and that it had not been duly promulgated. The learned Magistrate negatived these contentions and found the petitioners guilty who thereafter applied to this Court and obtained the present Rule.

( 4 ) MR. Mukherjee appearing in support of this Rule has made several points. In the first place, it has been contended that the complaint in this case having been made by Sri Poddar, it was not a proper complaint in accordance with the terms of Section 195, Criminal P. C. The argument is based on Clause (a) of Sub-section (i) of Section 193 which provides that no Court shall take cognizance of an offence punishable under Section 188, Penal Code except on the complaint in writing of the public servant concerned. It is said that the order of injunction that had been made in the case might have been made by Sri Poddar. But he was on the date functioning as Sub-Divisional Magistrate. Consequently, the order which was said to have been infringed or violated was the order of the Sub-Div. Magistrate and the only public servant who was competent under the terms of Section 195 (1) (a) to make a complaint would be the Sub-Divisional Magistrate, Uluberia. It is to be observed that on 24-8-1954 Sri Pod dar made the order while acting as the Sub-Divi sional Magistrate; but on the day the complaint was made, Sri Poddar was no longer functioning as Sub-Divisional Magistrate but only as a Magis trate of the First Class. Mr. Mukherjee contends that it matters nothing that the order of injunc tion was made by Mr, Poddar which was more or less an accidental circumstance. The public Servant concerned, according to Mr. Mukherjee would, therefore, be the Sub-Divisional Magistrate, Uluberia, whoever that person may be. I do not think there is substance in this contention in view of the terms of cl. (a) of Sub-section (1) of Section 195, Cri. P. C. The 'ex parte' order of Injunction under Section 144 of the Code was made by Sri Poddar while functioning as the Sub-Divisional Magistrate: it was his order that was alleged to have been violated or disobeyed, and the complaint which he made was, in my view, a valid complaint, although on the date he was not functioning as the Sub-Divisional Magistrate.

( 5 ) THERE is another branch of this argument to which I must refer. Mr. Mukherjee has con tended that if the words of Clause (a) of Sub-section (1) of Section 195, Crimin

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