Norman, J.@mdashThese cases have been sent up by the Judicial Commissioner of Assam. It appears that the Deputy Commissioner of Seebsagor finding that great inconvenience and mischief were caused by cattle found straying on the high roads about the station and in the bazar, on the 13th of March last issued an order warning owners of cattle to take proper care of them; and that if they let loose their cattle, without any one to look after them, and caused such mischief, they would be punished under Act V of 1861 and other Laws and Regulations relative to contempt of orders. Notwithstanding this order, people continued to allow cattle and horses to run at large on the roads. The Deputy Commissioner ordered that such cattle should be seized and impounded, and on the owners claiming their cattle caused proceedings to be taken against them for disobedience of the order of the 13th of March. The parties now before the Court have been fined in divers small sums, from one rupee to five rupees. The Judicial Commissioner, there being no appeal, sent the proceedings before this Court, u/s 434. And the main questions appear to be, first, whether that order was one which, u/s 62 of the Code of Criminal Procedure, the Magistrate was competent to pass; and, secondly, whether the parties now before the Court can legally be punished, u/s 188 of the Indian Penal Code, for disobedience of that order. The Judicial Commissioner supposes that the defendants were punishable under Act III of 1857, but that is not so. The preamble of that Act recites, that "loss and injury are suffered by cultivators and occupiers of land, for damage done to crops and other "produce of land, by the trespass of cattle, and that damage is done to the sides and slopes of public roads and embankments by cattle trespassing thereon, and that it is expedient to make provisions for the disposal of cattle found straying," and makes provisions for such cases. But it contains no enactment providing for the punishment of persons causing nuisance to the public and interruption of traffic by allowing cattle to stray in public roads and bazars.
2. On a careful consideration of the 62nd section, we have come to the conclusion that the order of the 13th of March is not one which a Magistrate is competent to make under the provisions contained in it. The order in question is of the nature of a bye-law--an attempted exercise of a supposed power of legislation on the part of the Deputy Commissioner. The Code of Criminal Procedure was passed, as appears by its preamble, to simplify the procedure of certain Courts of Criminal Judicature. It certainly would be very extraordinary to find in such a code powers given to Magistrates to make regulations or bye-laws for the government of Municipalities. It is clear that the order contemplated by section 62 is a particular and specific order addressed to a particular person or particular persons to do or abstain from a particular act or particular acts. An order in short of the nature of an injunction or command which the Magistrate is to make in a judicial capacity as the Judge in a Criminal Court, is not a regulation or a law. We think therefore that the parties in question could Dot be convicted u/s 188 of the Indian Penal Code of disobedience of the order of the Deputy Commissioner, by allowing their cattle to stray about the roads. We therefore quash the conviction. The Deputy Commissioner seems to have supposed that he could have proceeded against the offenders u/s 34, Act V of 1861. That seems to be a mistake. But probably some of them might have been properly punished u/s 283 of the Indian Penal Code.
