Skip to content


Ram Nath Chowdhry Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1907)ILR34Cal897
AppellantRam Nath Chowdhry
RespondentEmperor
Cases ReferredBrojo Lal Rai Chowdhury v. Tara Prasanna Bhatlaeharji
Excerpt:
breach of the peace - apprehended danger--prohibitory order without express limitation of time--legality of the order--criminal procedure code (act v of 1898) sections 144 clause (5), 555, schedule v, form xxi. - r.f. rampini, a.c.j.1. the question referred to us is, whether an order under section 144 of the code of criminal procedure is bad because it does not state that its operation is confined to two months, or some shorter period, from the making thereof.2. it appears to me that there can be no question as to the answer to be given to this inquiry. under the provisions of clause (5) to section 144 of the code of criminal procedure it is clear that an order under section 144 only enures for a period of two months, and, therefore, unless there is something in the order which shows that it is intended that the order should remain in force for more than two months, it must be presumed that the order is to be limited to the period of two months specified in the code. there is no necessity to state.....
Judgment:

R.F. Rampini, A.C.J.

1. The question referred to us is, whether an order under Section 144 of the Code of Criminal Procedure is bad because it does not state that its operation is confined to two months, or some shorter period, from the making thereof.

2. It appears to me that there can be no question as to the answer to be given to this inquiry. Under the provisions of Clause (5) to Section 144 of the Code of Criminal Procedure it is clear that an order under Section 144 only enures for a period of two months, and, therefore, unless there is something in the order which shows that it is intended that the order should remain in force for more than two months, it must be presumed that the order is to be limited to the period of two months specified in the Code. There is no necessity to state in the order that such an order shall remain in force for two months only.

3. Then, it is clear that the order in this case was passed in accordance with Form XXI of Schedule V of the Code of Criminal Procedure, and, under Section 555 of that Code, this is sufficient. I would, therefore, answer the question put to us in the negative.

4. With this expression of opinion I would return the case to the referring Bench to he disposed of.

Brett, J.

5. I agree.

Stephen, J.

6. I agree.

Woodroffe, J.

7. I also agree.

Mookerjee, J.

8. The question referred to a Full Bench for decision is whether an order under Section 144 of the Code of Criminal Procedure is bad because it does not state that its operation is confined to two months, or some shorter period, from the making thereof.

9. The learned vakil for the petitioners, who has appeared in support of the Rule, has contended that the question ought to be answered in the affirmative. In support of this position reliance has been placed upon the cases of Golam Mdhamad v. Bhuban Mohan Moitra (1897) 2 C.W.N. 422, Remjit Singh v. Luchman Prosad (1902) 7 C.W.N. 140, and Bidhu Ranjan Mazumdar v. Ramesh Chandra Rai (1906) 11 C.W.N. 223. As regards the first of these cases, it may be doubtful whether it really supports the contention of the petitioners, though in one passage in the judgment reference is made to the fact that the order was indefinite as to time; but how far this was the basis of the decision of the Court may be a matter for controversy. The other two oases, however, broadly affirm the proposition that an order under Section 144 of the Code of Criminal Procedure is bad if it does not state the period of two months to which the operation of the order is confined; the reason assigned is that an order so framed is, in substance, one for a perpetual injunction and consequently ultra vires. I regret I am unable to adopt as well founded the view taken in these cases, and my reasons are two-fold. In the first place, Form XXI of Schedule V of the Code of Criminal Procedure, compliance with which is sufficient under Section 555, shows that it is not necessary to define the time to which the operation of the order is to extend In other words, if the intention is that the order should operate for a shorter period than two months, the Court ought to specify the term, but if there is no specification, by virtue of Section 144 Sub-section (5), the order operates for two months and no longer. In the second place, even if Form XXI of Schedule V had not been prescribed by the Legislature, I think the same conclusion would follow independently of Section 555 of the Criminal Procedure Code. It is an elementary principle of construction, that where a judicial order is to be interpreted, such construction must, if possible, be adopted as would make the order one in accordance with law and not an order such as the Court making it had no power to pass. This principle which was adopted by the learned Judges of the Allahabad High Court in the case of Amolak Ram v. Lachmi Narain (1896) I.L.R. 19 All. 174, and by a Division Bench of this Court in the case of Brojo Lal Rai Chowdhury v. Tara Prasanna Bhatlaeharji (1905) 3 C.L.J. 188, furnishes a complete answer to the contention of the petitioners. If no time is specified, the reasonable presumption is that the Court intended to pass an order which it was competent to pass and which would operate for two months, and not to pass an order which would be beyond its statutory powers and consequently void.

10. In my opinion, therefore, the question referred to the Full Bench should be answered in the negative, and this case returned to the referring Bench for final disposal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //