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Chhotu S/O Imamkhan Vs. King-emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Judge
Reported in1950CriLJ1007
AppellantChhotu S/O Imamkhan
RespondentKing-emperor
Excerpt:
- - 2. the applicant bad been declared a tout under section 36 (4), legal practitioners act and he was so shown in civil circular memorandum no......relevant civil circular memorandum. he also asserted that he had not received from the district judge, nagpur an order excluding him from the precinets of the courts. he admitted that on 7th october 1946 he had received in the court premises a registered envelope from lalman (p.w. 8) and that he was thereafter produced in the court of the third additional district judge, nagpur. when asked to account foe shri manobar's evidence against him, he asserted that he was dada seth's employee and that, in accordance with his orders, he used to go to courts in connection with suits and cases. no evidence was adduced in his behalf.4. the applicant's learned counsel first con-tended that section 188, penal code, referred to orders issued under the code of criminal procedure and not to orders.....
Judgment:
ORDER

Hemeon, J.

1. The applicant Sheikh Chhotu was convicted and sentenced to pay a fine of BSection 100 by the First Class Magistrate, Nagpur, Under Section 188, Penal Code and his appeal was dismissed by the Second Additional Sessions Judge, Hagpur. He has now come up in revision to this Court.

2. The applicant bad been declared a tout Under Section 36 (4), Legal Practitioners Act and he was so shown in Civil Circular Memorandum No. IS issued by the Court of the Judicial Commissioner, Nagpur, on 7th July 193d. Although he was as a tout excluded from the preoinots of the Courts in Nagpur, be on 7th October 1946 approached Lalman (P.W. 8), postman, under the tamarind tree between the Bar room and the civil Court and asked him concerning letters addressed to Baghunathsingh, attorney to Shri Y. P. Verma, Barrister, at law. Lalman then delivered to him a registered letter addressed to Baghunathsingh and obtained his signature on the acknowledgment form. This was witnessed by Shri R. E. Manohar (P.W. 4), Advocate, who reported the matter to the District Judge. Bbri Manohar further stated that the applicant had sot ceased to come to Court after he had been declared a tout and that be was to be seen almost daily loitering between the compounds of the District and civil Courts. Sambbaji (P.W. 1) and Pannalal (P.W. 2), registered typists, also declared that they had frequently seen the applicant within the precincts of the District Court.

3. The applicant in examination admitted that proceedings for declaring him a tout had been initiated, but he claimed that the result had not been intimated to him and that he was not aware of the contents of the relevant Civil Circular Memorandum. He also asserted that he had not received from the District Judge, Nagpur an order excluding him from the precinets of the Courts. He admitted that on 7th October 1946 he had received in the Court premises a registered envelope from Lalman (P.W. 8) and that he was thereafter produced in the Court of the Third Additional District Judge, Nagpur. When asked to account foe Shri Manobar's evidence against him, he asserted that he was Dada Seth's employee and that, in accordance with his orders, he used to go to Courts in connection with suits and cases. No evidence was adduced in his behalf.

4. The applicant's learned Counsel first con-tended that Section 188, Penal Code, referred to orders issued under the Code of Criminal Procedure and not to orders issued under other enacments. In so contending he relied on the decision in P.C. Mammali v. Eutti Ammu 89 Mad. 643 : A. I. R 1916 Mad. 640 : 16 Cr.L.J., 692, in which a Division Bench in an extremely judgment made the following observations:

The District Judge is wrong in holding that disobedience to an injunction issued by a Civil Court is punishable Under Section 188, Penal Code, The word promulgated is that action refers, as pointed out in In the matter of the petition of Chandrakanla De 6 Cal. 445 : 7 C. L. R. 350 to orders issued under the Code of Criminal Procedure, not to judgments and orders Of Civil Courts, We mast set aside the order of the lower Appellate Court and direct him to dispose of the appeal on the merits.

5. The reference therein to the Calcutta case was, and I say it with great respect, inaccurate, because in that the Division Bench had made it clear that in their opinion Section 188, Penal Code applies to orders made by public functionaries for public purposes, and not to at order made in a civil suit between party and party. My point is that the Calcutta Division. Bench had not held that the section applies only to orders issued under the Code of Criminal Procedure but to orders made by public functionaries for public purpose. Moreover, that view was followed by Batten J. C. (then 0. J. C.) in Hirasingh v. Emperor 17 N. L. R. 88 : A. I. R 1922 Nag. 209 : 23 Cr.L.J. 19 when he recorded the opinion that a person who disobeys an order passed Under Section 219, Central Provinces Land Revenue Act, 1917, is liable to be punished Under Section 188, Penal Code for disobedience of the order.

6. Further, as was held in Lala Baburam v. B. Nityanand Mathur : AIR1939All168 proceedings under the Legal Practitioners Act are quasi-criminal proceedings, and the terminology of Section 188, Penal Code, indicates that it would apply to an order passed, as in this case, by a District Judge acting under that Act. This is necessarily subject to the fact that the applicant was aware of the order in question and on this point it may be safely presumed that he was bound to have been apprised of it. It was not the type of order which could have escaped his attention as it was found to effect his livelihood. Moreover Shri B, K. Manohar (P.W. 4), who was secretary of the District Bar Association, Nagpur, between 1983 and 1936, averred that the order containing the list of persons declared as touts was not only published in Civil Circular Memorandum No. 15, which had been issued by the Court of the Judicial Commissioner on 7th July 1934, but had also been published in the Court of the District Judge. The applicant too had, on his own admission, stated that proceedings for the purpose of declaring him to be a tout had been started and his assertion that be was not aware of the result was one which is ex facie false.

7. The order in Section 86 (4), Legal Practitioners Act, is a general or special order but, whichever it is, it has, if issued, to exclude from the precincts of the Court any person whose name is included in the list of touts. There was little material to show that the District Judge had passed such an order, although it was established that he had published a list of touts; but shri Monobar's testimony demonstrated that the Judicial Commissioner's Court had published a list of touts in a memorandum, and the memorandum in question indicated that an order excluding the applicant Under Section 36 (4) had been passed by the District Judge, Nagpur. This was an order of which the applicant must, as shown, have been fully aware and it was clear that he had flouted it on several occasions.

8. The conviction was, therefore, in order and it is affirmed. The sentence which erred on the side of leniency is maintained.

9. The application is dismissed.


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