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Mohini Mohan Chowdhry Vs. Harendra Chandra Chowdhry - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1904)ILR31Cal691
AppellantMohini Mohan Chowdhry
RespondentHarendra Chandra Chowdhry
Cases ReferredDebendra Chandra Chowdhury v. Mohini Mohan Chowdhry
Excerpt:
wrongful restraint - right of way, interference with--order to remove obstruction. - .....cited. no such power is vested in the magistrate either under the penal code or under the code of criminal procedure, and, in the absence of such statutory power. i fail to see how the order could properly have been made. i wish. i could have arrived at a different conclusion as expediency and common sense point in that direction but having regard to the facts found in this case, and to the terms of section 522 of the code of criminal procedure, the order may be supported. i see no reason for putting a narrow construction upon that section. here the offence was attended by criminal force, and as the complainant was dispossessed by reason of the obstruction complained of, the case appears to me to fall within the section. the order then of the magistrate may be sustained on this.....
Judgment:

Francis W. Maclean, C.J.

1. The question submitted to us is this: 'Can a Magistrate, while convicting an accused under Sections 341/114 the Indian Penal Code, for wrongfully restraining a person by the erection of a hut or by any similar act of obstruction, order that the hut or other means of obstruction should be removed?' In my opinion, the Magistrate has no jurisdiction, under the sections referred to, to' make such an order, and I say this with all respect to the authority cited. No such power is vested in the Magistrate either under the Penal Code or under the Code of Criminal Procedure, and, in the absence of such statutory power. I fail to see how the order could properly have been made. I wish. I could have arrived at a different conclusion as expediency and common sense point in that direction but having regard to the facts found in this case, and to the terms of Section 522 of the Code of Criminal Procedure, the order may be supported. I see no reason for putting a narrow construction upon that section. Here the offence was attended by criminal force, and as the complainant was dispossessed by reason of the obstruction complained of, the case appears to me to fall within the section. The order then of the Magistrate may be sustained on this ground. It is true that this point has not been referred to us, as it was not raised before the -Referring Bench: but I can see no reason, as it has been argued before us, and all the facts are before us, why we should not express our opinion upon it.

Prinsep, J.

2. I also agree that the order for the removal of the hut is not one which the Court is competent to pass, within the powers conferred upon it by the Code of Criminal Procedure, The matters in which a consequential or incidental order may be passed, in addition to a conviction, are expressly set out in the Code of Criminal Procedure; and, in my opinion, the powers of a Court are limited to those. The order in this ease, however, could be passed under Section 522 of the Code of Criminal Procedure, inasmuch as on the finding of the Appellate Court, criminal force was used when the complainant and others objected to the obstruction, which constitutes the offence of wrongful restraint, the offence of which the petitioners have been convicted. That offence was therefore attended by criminal force within the terms of Section 522. I am aware that there are cases in which it has been hold that the offence, for which the conviction has been had, must be one of which criminal force is an ingredient. But I am not prepared to take such a contracted view of the terms of that section. The law says that the offence must be attended by criminal force, not that criminal force must necessarily form a portion of the offence. The order, therefore, should be maintained as though made under Section 522.

Ghose, J.

3. I agree in the judgment that has been delivered by my Lord.

4. On the question that has been referred to the Full Bench, any views were fully pressed in the reference that was made to the Full Bench; and I adhere to those views.

Ameer Ali, J.

5. I do not see any reason to modify or alter the opinion which I, sitting with my learned brother Pratt J. expressed in the case of Debendra Chandra Chowdhury v. Mohini Mohan Chowdhry (1901) 5 C.W.N. 432. In my opinion, the Criminal Court has an inherent power to make an order for giving proper and sufficient effect to the result consequent upon and issuing out of a conviction of this nature. In my judgment, a contrary view regarding the jurisdiction of the Court will lead to great mischief and harassment of parties complaining of offences of this class.

6. It is admitted that such a power is not only desirable but most expedient in the furtherance of justice, hut it is said that this is a case of omission,--the Legislature having omitted to give such a power to the Criminal Courts. The law, it seems to me, cannot provide for every possible contingency and must leave something to the discretion of those, who have to administer it.

7. As I have given my reasons sufficiently in the case to which I have referred, I do not wish to go over the same ground. I think that the order complained against is a corollary to the previous conviction of the accused under Section 341 and further, that upon the facts of this particular case, it could have been made also under Section 522 of the Code of Criminal Procedure.

Brett, J.

8. I agree with my Lord the Chief Justice that the order can be supported as one falling under Section 822 of the Code of Criminal Procedure. I, however, agree with Mr. Justice Ameer Ali that the Magistrate had an inherent power to pass the order, on the conviction under Section 341 of the Indian Penal Code, irrespective of his powers under Section 522 of the Criminal Procedure Code.


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