The disobedience of an order under Section 144, Criminal P.C. is punishable under Section 188, Penal Code only if it has or tends to have specific effects mentioned in the latter part of the section.

Sen, J.

[1] This is a Reference by the Sessions Judge of Burdwan, recommending that the order of conviction and aentenca passed on one Darbarilal Shaw for having committed an offence punishable under Section 188, Penal Code, be set aside on the grounds stated in the Letter of Reference, The facts briefly are as follows :

[2] On 12th January 1948, a report was submitted by the Khasmahal Tahsildar that Darbarilal Bhaw was making additions and alterations in an old building in such a way as to encroach upon the Khasmahal lands on the Grand Trunk Road to the extent of 6 inches in breadth. Upon this report being made to the Sub-Divisional Magistrate, he sent it for disposal to another Magistrate Sri. J.K. Ghose who drew up proceedings according to the provisions of Section 144, Criminal P.C. On 9th February 1948, another report was submitted by the Khasmahal Tahaildar that the order Under Section 144, Criminal P.C. was being disobeyed. Upon this a complaint was made by the Magistrate Sri J.K. Ghose charging Darbarilal Shaw and another with having committed an offence punishable Under Section 188, Penal Code. The matter was heard by Sri S.C. Banerjee, Magistrate, 1st class, Asansol. He acquitted the other accused but found Darbarilal Shaw guilty of the offence and fined him Rs. 100; in default he was sentenced to simple imprisonment for 7 days.

[3] The learned Judge in referring this matter to this Court states that the conviction is bad, inasmuch as Sri J. K. Ghose who passed the order Under Section 144, Criminal P.C., was not specially empowered to pass such an order and therefore he acted without jurisdiction. The order being without jurisdiction, the conviction for disobedience of the order, according to the learned Judge, cannot stand. The second ground mentioned in the letter of the learned Judge is that the service of the order passed Under Section 144, Criminal P.C. wag not regular, inasmuch as a duplicate copy of the order was not left with the accused. Lastly, he says that the order Under Section 144, Criminal P.C. should not have been passed as the evidence given was not sufficient to warrant such an order.

[4] In my opinion, none of these three grounds would justify this Court in setting aside the conviction of the accused.

[5] As regards the first ground, I find that it was never taken in the petition before the learned Judge, 12 or 13 grounds were taken and the learned Judge sent those grounds to the learned Magistrate for his explanation. The learned Magistrate gave a full explanation with respect to all the grounds which were taken. Ha was not asked, however, to state whether the Magistrate had the power to pass the order Under Section 144, Criminal P.C. and very naturally he did not state anything with regard to this matter. The learned Judge should not have come to the conclusion that the Magistrate had no such power without first asking the Magistrate to explain. To make a reference on a ground which the Magistrate had not had the opportunity to meet is scarcely fair on the Magistrate. There is nothing to show that the Magistrate acted without jurisdiction. A Magistrate of the first class may be invested with powers to pass orders Under Section 144, Criminal P.C. There is nothing to show that this Magistrate was not empowered to do this. Again a Magistrate, acting as a Sub-Divisional Magistrate, has, by virtue of his position as Sub-Divisional Magistrate, power to entertain proceedings Under Section 144, Criminal P.C. From the papers sent to this Court, it seems that the Magistrate Sri J. C. Ghose was acting as Sub-Divisional Magistrate when he made this order. In the judgment passed by the learned Magistrate trying the case under S. 188, Penal Code, there is a clear statement that Sri J. K. Ghose was working on the file of the Sub. Divisional Magistrate when he drew up proceedings Under Section 144, Criminal P.C. In the question put by the learned Magistrate to the accused when he was examined Under Section 3