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Emperor Vs. Bhola Giri Mohunt - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1936Cal259
AppellantEmperor
RespondentBhola Giri Mohunt
Excerpt:
- .....the charge against the accused was under section 188, i. p. c., that he violated the order of injunction passed on 21st september 1934 by doing certain acts between the 10th november, and 21st november 1934. he has been convicted by the trying magistrate and the learned additional district magistrate of alipore has made this reference under the provisions of section 438, criminal p. c. in my judgment the conviction cannot stand. it can only stand if there was an injunction on the petitioner under section 144, criminal p. c. that section contemplates the passing of an absolute order directing any person to abstain from any act or take certain order with certain property in his possession or under his enjoyment. the order can be passed either ex parte in case of emergency under the.....
Judgment:
ORDER

R.C. Mitter, J.

1. It appears that a certain plot of land was acquired under the Land Acquisition Act for the purpose of extending the Gun and Shell Factory at Cossipore. Within the plot there is a Siva temple belonging to the accused Bhola Giri. The site of the temple was not acquired. Various disputes arose between the accused and the officers of the Gun and Shell Factory, but they resulted in compromises, and ultimately it was agreed that a space of four cubits was to be left open for the purpose of affording access to the temple. On 21st September 1934 a certain complaint was made to the learned Police Magistrate at Sealdah by the officer in charge of the Cossipore Police Station. The learned Magistrate on that date passed an order after reciting the acts said to have been committed by the accused which according to him would lead to a disturbance of the peace on the following terms:

As the said breach of the peace is imminent and immediate preventive measures are desirable, I do hereby under Section 144, Criminal P. C., order and direct the person named in the margin (the accused) either to refrain from doing any of the acts set forth above and exercising any other act set forth above beyond using the passage as a passage; or to show cause, if any, against the said orders of injunction on 2nd October 1934.

2. In pursuance of this order, the accused showed cause before the learned Magistrate. The charge against the accused was under Section 188, I. P. C., that he violated the order of injunction passed on 21st September 1934 by doing certain acts between the 10th November, and 21st November 1934. He has been convicted by the trying Magistrate and the learned Additional District Magistrate of Alipore has made this reference under the provisions of Section 438, Criminal P. C. In my judgment the conviction cannot stand. It can only stand if there was an injunction on the petitioner under Section 144, Criminal P. C. That section contemplates the passing of an absolute order directing any person to abstain from any act or take certain order with certain property in his possession or under his enjoyment. The order can be passed either ex parte in case of emergency under the provisions of Sub-section (2) or it may be passed after giving an opportunity to the person against whom an order is proposed to be passed. But the order must be an order which is absolute and definite in terms. Section 144, Clauses (a) and (b) do not contemplate the passing of a conditional order to be made absolute later on. As I read these provisions the order for injunction under Section 144 must be an absolute and definite order, and it must be left to the party to apply for rescinding the order by having recourse to the procedure laid down in sub.sSection 4 and 5 of the said section. In the present case the order is in the following terms: '....... either to refrain from doing any of the acts set forth above .... or to show cause, if any, against the said order.'

3. It is not an order which comes within the terms of Section 144, Criminal P. C., at all. The order is not definite. In this view, and having regard to the fact that there was no order for injunction as contemplated by Section 144 passed on the accused on 21st September 1934, the charge for violating an imagined injunction can not be sustained. For these reasons I accept the Reference, set aside the conviction and sentence passed on the accused and acquit him of the charge. The fine, if already paid must be refunded.


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