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Satya Charan De and anr. Vs. Emperor - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Reported inAIR1930Cal63
AppellantSatya Charan De and anr.
RespondentEmperor
Excerpt:
- .....the petitioners under section 188, i.p.c., was bad in law, inasmuch as neither of them had been a party to the proceedings under section 145, criminal p.c.2. as regards the first ground, i do not think that there is much substance in it. it appears that, when the case for the prosecution was closed, the petitioners applied to the trying magistrate for an adjournment of the case for 15 days in order to call defence witnesses. the learned magistrate without adjourning the case for 15 days granted only a day's time and, when the case was taken upon the next day, namely, the 14th august 1928, seven witnesses for the accused were produced and all of them were examined. there is nothing to show that the petitioners wanted to examine any witnesses other than the seven who were produced in.....
Judgment:

Mallik, J.

1. The facts which have given rise to the present rule are briefly these: There was a proceeding under Section 145, Criminal P.C. between one Mon Mohun Chakravarty and others, first party, and Naba Chandra Chakravarty and others, second party. This proceeding under Section 145; Criminal P.C. was on 16th January 1928, decided in favour of the first party and the first party were declared entitled to maintain possession of the property in dispute and it was also ordered that there must not be any interference with their possession. When the Daroga went to the spot on 1st April 1928, he found the present petitioners in occupation of the property and, when he asked them to vacate it, the petitioners declined to do so. On these facts, the two petitioners were put on their trial under Section 188, I.P.C., and both of them were ultimately convicted and sentenced under that section. Against this order of conviction and sentence, the petitioners went up to the Sessions Judge but without any success. Thereafter, they came up to this Court and obtained the present rule on the District Magistrate to show cause why their conviction and sentence should not be set aside. The rule was issued on two grounds: (1) that the trial Court had acted illegally in rejecting the petition of the accused persons praying for time for issue of process upon their witnesses and (2) that the conviction and sentence of the petitioners under Section 188, I.P.C., was bad in law, inasmuch as neither of them had been a party to the proceedings under Section 145, Criminal P.C.

2. As regards the first ground, I do not think that there is much substance in it. It appears that, when the case for the prosecution was closed, the petitioners applied to the trying Magistrate for an adjournment of the case for 15 days in order to call defence witnesses. The learned Magistrate without adjourning the case for 15 days granted only a day's time and, when the case was taken upon the next day, namely, the 14th August 1928, seven witnesses for the accused were produced and all of them were examined. There is nothing to show that the petitioners wanted to examine any witnesses other than the seven who were produced in Court on 14th August and were, as a matter of fact, examined by the Magistrate. That being so, it cannot be contended that the petitioners were in any way prejudiced by the Magistrate's refusal to adjourn the case for 15 days.

3. The second ground on which this rule was issued was that the conviction of the petitioners was wrong in law, inasmuch as the petitioners had not been any party to the proceedings under Section 145, Criminal P.C., and it was contended that, as they were no parties to the proceedings under Section 145, Criminal P.C., the order passed by the Magistrate under that section was not binding on them. The question that arises for consideration in connexion with this point is whether the binding character of an order under Section 145, Criminal P.C. is under all circumstances to be confined to the persons who were actually parties to the proceeding. I am inclined to think that this question should be answered in the negative. Sub-section (3), Section 145 lays down that at least one copy of the order passed under Sub-section (1) must be published by affixing it in some conspicuous place at or near the subject of dispute, This, to my mind, is an indication that the binding character of an order passed under Section 145 is not, under all circumstances, to be confined to the persons who were actually made parties to the proceeding but may, under certain circumstances, extend to persons other than1, the parties themselves. This view has been adopted by the Bombay High Court In re Nathubhai Brijlal [1909] 11 Bom. L.R. 377 where it has been held that an order under Section 145, Criminal P.C. is binding not only on the actual parties to the proceedings but also on persons who may have notice of the proceedings.

4. In the present case, the two petitioners were not only aware of the proceedings under Section 145 but they have been found to have acted in collusion with the second party in order to deprive the first party of the fruits of their success in the Section 145 case. Having regard, therefore, to the provisions of Section 145(3), Criminal P.C., and the findings of fact arrived at by the Courts below, I am of opinion that the order under Section 145, Criminal P.C. was binding on the present petitioners as well. That being so, their conviction under Section 188, I.P.C. cannot be successfully challenged on the ground that they were not bound thereby.

5. The result, therefore, is that the Rule is discharged.

Pearson, J.

6. I agree.


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