1917 Present: Ennis J. and Shaw J.

ROGERSON v. BODIYA.

130-P. C. Panwila, 1,366.

Criminal trespass-Order that complainant be restored to possession of land-Criminal Procedure Code, s. 418-Accused re-entering land soon after restoration of possession-Disobeying lawful orders of public servant-Penal Code, s. 186.

The accused was convicted of criminal trespass, and at the same time the Magistrate made an order, under section 418 of the Criminal Procedure Code, directing that the complainant be restored to the possession of the land. The order was duly carried out by a headman, but soon after the accused re-entered the land.

Held, that accused was guilty of disobeying a lawful order of a public servant (under section 186 of the Penal Code).

The order of the Magistrate was not one directing generally that the complainant be placed in possession, or an order addressed to some official of the Court to place him in possession, but was an order upon the accused personally.

THE facts appear from the judgment.

G. Koch, for appellant.-The order in question is ultra vires; section 418 of the Criminal Procedure Code, under which the order was made, justifies such order only where the offence of which the accused is convicted is " attended by criminal force." Criminal trespass is not an offence necessarily attended by criminal force, and there is nothing to show the nature of the offence in this case. Section 185 of the Penal Code, under which the charge is laid, contemplates an order directed to the accused. The order which is the subject of the charge was not directed to the accused. There is no proof that disobedience of the order " caused or tended to cause obstruction, annoyance, or injury, or risk of obstruction, &c, to any person lawfully employed.'' The korala carried out the order without any obstruction, &c., on the part of the accused. At the time of the execution of the order the same was under suspension, an appeal having been filed, and the Police Magistrate had therefore no jurisdiction to enforce such order till the appeal was decided. Ratnalal 236; Starling 246; 12 N. L. R. 155.

V. M. Fernando, C .C., for respondent, cited 7. L. R. 6 Calcutta 88 and I. L .R. 13 Calcutta 175.

Cur. adv. vult.

March 5, 1917. ENNIS J.-

In this case the accused has been convicted, under section 185 of the Penal Code, of disobeying a lawful order of a public servant which had been duly promulgated. The terms of the order alleged to have been disobeyed differ in the plaint, the summons, and the formal conviction sheet. The evidence of the order is the document

A, which recites that in an action for criminal trespass against the accused " it was ordered that the complainant be restored to the possession of the said land." This order was presumably made under section 418 of the Criminal Procedure Code. The evidence shows that it was duly carried out, but half an hour later the accused re-entered the land, and the conviction is based on an implied order to the accused not to do anything to disturb the possession given by the Court.

There can be no doubt that the only object of an order under section 418 of the Criminal Procedure Code is to prevent a breach of the peace by the occupation being disturbed, as such an order confers no title on the person ordered to be restored to possession. It is usual, however, in such orders, to specifically forbid the accused and all others to disturb the possession, until such disturbance be effected by due course of law.1[ In re Surjanarain, 6 Cal. 88; Golusd Chandra. Pal, 13 Cal. 175.] This does not appear to have been done in the present case. The point as to how far, if at all, an order can be implied in connection with a prosecution under section 185 is of some importance, and I accordingly refer the case to a Bench of two Judges.

ENNIS J.-

I have come to the conclusion, on a further consideration of this case, that the Ma