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Khajer Naskar and anr. Vs. Tabrej Ali Naskar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1933Cal752
AppellantKhajer Naskar and anr.
RespondentTabrej Ali Naskar
Excerpt:
- .....there is one point, however, which we must notice. it is argued that having regard to the words in clause (2), section 147, criminal p.c., as it now stands, the order of the magistrate directing removal of the obstruction complained of is illegal. the words of the clause in section 147 run as follows:if it appears to such magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.2. it is admitted that if the magistrate had made an order in the terms of the section, no complaint could have been found with his order. each case must depend upon its own facts and it is impossible to lay down a hard and fast rule that in every case the final order of the magistrate should be in exactly the same words as are used in the.....
Judgment:
ORDER

1. We have examined the terms of the judgments and having regard to the findings of fact arrived at by the Court of first instance, we do not think that this is a case which calls for our interference. There is one point, however, which we must notice. It is argued that having regard to the words in Clause (2), Section 147, Criminal P.C., as it now stands, the order of the Magistrate directing removal of the obstruction complained of is illegal. The words of the clause in Section 147 run as follows:

If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.

2. It is admitted that if the Magistrate had made an order in the terms of the section, no complaint could have been found with his order. Each case must depend upon its own facts and it is impossible to lay down a hard and fast rule that in every case the final order of the Magistrate should be in exactly the same words as are used in the section. Here it has been found that by reason of the erection of the wall an obstruction has been caused; in other words, it has been found that the exercise of the right alleged by the complainant has been interfered with; and, if the Magistrate says to the party who is obstructing the exercise of the right alleged by the complainant that he should be prohibited from interfering with the exercise of such right, and if he translates the order in a manner which would be effective by saying that 'you the party obstructing must remove the obstruction,' that is the same thing as is indicated in the terms of the clause referred to above. The contention of the learned advocate may furnish ground for a dialectical argument; but there is no substance in it nor is there any sense in it. We therefore negative that and direct that the rule do stand discharged.


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