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Ambica Prasad Singh Vs. Gur Sahay Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1912)ILR39Cal560
AppellantAmbica Prasad Singh
RespondentGur Sahay Singh
Cases ReferredDowlat Koer v. Siva Pershad Pandit
Excerpt:
dispute concerning easement - right of passage of surplus water through an ill--jurisdiction of magistrate to direct an opening in the dl to be made by a party, and, on failure, by the police--criminal procedure code (act v of 1898), section 117. - .....case is a good one. it appears on the face of the order that the second party having satisfied the magistrate that he had a right to have an opening in the dl in question for the purpose of passing water, he having exercised the right for several years, and also during the last rains when the right was last exercisable, it was clearly the magistrate's duty to direct the first party to make three openings in the said dl within a reasonable time from the passing of the order. the time given was five days.2. then comes the question, if he failed to carry out the court's order, what was to be done. the court held, following our judgment in dowlat koer v. siva pershad pandit (1911) 10 ind. cas, 615 and the cases we have cited from 5 calcutta weekly notes, that the police might be ordered to.....
Judgment:

Holmwood and Sharfuddin, JJ.

1. This Rule was apparently issued on some apparent conflict between the rulings in the cases of Pasupati hath Bose v. Nando Lal Bose (1900) 5 C.W.N. 67 and Lalit Chandra Neogi v. Tarini Persad Gupta (1901) 5 C.W.N. 335 with the later decision in the case of Dalmir Puri v. Khodadad Khan (1909) I.L.R. 36 Calc. 923. All these cases we may say are in direct conflict with the early Madras Killing in In re Lindsay (1881) I.L.R. 4 Mad. 121. But that of course does not affect our decision in this Court. We are bound to follow the rulings of the Calcutta Court. Now, it so happens that this apparent conflict has been dealt with by us in a judgment which was passed in Criminal Revision No. 187 of 1911. Doivlat Koer v. Siva Pershad Pandit (1911) 10 Ind. Cas. 615 but which does not appear in any of the various reports, though we are told it is reported in 'Indian Cases.' We, therefore, hold that the ground upon which the order was set aside in Dalmir Puri v. Khodadad Khan (1909) I.L.R. 36 Calc. 923 was quite distinguishable from the previous cases, which held that the Magistrate had power to invoke the assistance of the Police in carrying out the injunction he made under Section 147. The injunction in this case is a good one. It appears on the face of the order that the second party having satisfied the Magistrate that he had a right to have an opening in the dl in question for the purpose of passing water, he having exercised the right for several years, and also during the last rains when the right was last exercisable, it was clearly the Magistrate's duty to direct the first party to make three openings in the said dl within a reasonable time from the passing of the order. The time given was five days.

2. Then comes the question, if he failed to carry out the Court's order, what was to be done. The Court held, following our judgment in Dowlat Koer v. Siva Pershad Pandit (1911) 10 Ind. Cas, 615 and the cases we have cited from 5 Calcutta Weekly Notes, that the Police might be ordered to see that the obstruction wan removed. Of course, there is the alternative that the parties who failed to carry out the injunction should be prosecuted under Section 188 of the Penal Code. But we think that that would be a cumbrous course, and it would be much more prejudicial to the second party in a Section 145 case than the usual method of obtaining Police assistance. The Rule is, therefore, discharged.


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