1. This is a rule on the District Magistrate, to show cause why the, sanction to prosecute the petitioners under, Section 188 should not be set aside
Firstly, on, the ground that the order u/s 144 was not in accordance with the provisions of Scheduled 5, Form 21, of the Criminal Procedure,
Code, and, secondly, on the ground, that the, order sanctioning the prosecution did not show that disobedience caused, or tended to cause
obstruction, annoyance or injury or a riot.
2. When we granted this rule we understood that the only order passed u/s 144 ran as follows: ""Issue notice through special peon to both parties
u/s 141, Criminal Procedure Code, not to go to the disputed land or commit a breach of the peace."" Such an order would not be in accordance
with the provisions of the, schedule. But on reference to the record we, find that an order has been drawn, up in accordance with the requirements
of Form No. 21 of Scheduled 5.
3. It has been urged that this order also is insufficient and reliance has been placed on, the case of Karoo Lal Sajawal v. Shyam Lal 32 C. 935 : 9
C.W.N. 864 : 1 C.L.J. 216 : Cr. L.J. 215. It was held in that case that an order was u/s 144, Criminal Procedure Code, bad, where it did not
appear from the proceedings that the Magistrate was of opinion that immediate prevention or speedy remedy was necessary, and the order made
did not state the material facts of the case. In the case we have not the proceedings u/s 144 before us. There presumably was a police report or
some such document on which the order was passed and if we were to look into the proceedings it is possible enough that we should find that
there were sufficient gounds for holding that immediate prevention or speedy remedy was necessary.
4. As to the point that the order made does not state the material facts of the case, it is quite clear from the schedule that the material facts may be
stated with the greatest possible conciseness, and on looking at the order we think that it is perfectly valid under that schedule.
5. But we think that the order must be set aside on the second ground. A Magistrate should not sanction a prosecution u/s 188, unless he thinks
that all the elements necessary for a conviction are present. In the judgment of the Magistrate and in the subsequent order of the Sessions Judge,
there is nothing to show that either officer ever applied his mind at all to the question whether the disobedience of this order caused or tended to
cause annoyance, injury, obstruction or a riot. In the explanation submitted by the Magistrate he has entirely ignored the two grounds on which the
rule was issued and has confined himself to discussing other points in the petition with respect to which he was not consulted. We, therefore, derive
no assistance from his explanation in dealing with this point. There is nothing to show, as we have stated, that the Magistrate thought that
disobedience to his order tended to cause a riot. That being so, we think the sanction is wrong and must be set aside.