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Goluck Chandra Pal and ors. Vs. Kali Charan De - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1886)ILR13Cal175
AppellantGoluck Chandra Pal and ors.
RespondentKali Charan De
Excerpt:
criminal procedure code, section 145 - penal code, section 188--disobedience to order of public servant--inquiry as to possession--parties to inquiry. - .....section 145 of the code of criminal procedure in a dispute between certain members of the nag family and kutubudin, in which it was decided that the former was in possession of certain lands, and it was declared that they were entitled to retain possession thereof until evicted in due course of law, all disturbance of such possession until such eviction being forbidden.3. the petitioners are in the service of kutubudin and one who has purchased a small share of his property which adjoins the land in dispute, or have been engaged by those who represent these persons in the immediate neighbourhood of this land. they have now been convicted under section 188 of the indian penal code of having disobeyed an order passed in 1883 under section 145 of the code of criminal procedure, knowing.....
Judgment:

Prinsep and Grant, JJ.

1. This is an application made on behalf of twenty-four persons, one of whom, Bukshi Shonar, has been convicted under Section 157 of the Indian Penal Code and the others under Section 188. As regards Bukshi Shonar, it is sufficient to state that there is evidence which has been believed by the Deputy Magistrate and by the District Magistrate in appeal, which is sufficient for his conviction. There are no grounds for interfering as a Court of Revision in respect of this person.

2. It appears that in 1883 an order was passed by the Magistrate under Section 145 of the Code of Criminal Procedure in a dispute between certain members of the Nag family and Kutubudin, in which it was decided that the former was in possession of certain lands, and it was declared that they were entitled to retain possession thereof until evicted in due course of law, all disturbance of such possession until such eviction being forbidden.

3. The petitioners are in the service of Kutubudin and one who has purchased a small share of his property which adjoins the land in dispute, or have been engaged by those who represent these persons in the immediate neighbourhood of this land. They have now been convicted under Section 188 of the Indian Penal Code of having disobeyed an order passed in 1883 under Section 145 of the Code of Criminal Procedure, knowing that by this order they were directed to abstain from interfering with the possession of the Nag family.

4. The first objection raised is that, inasmuch as the order was not directed to them, they have not been properly convicted under Section 188.

5. The order in question was no doubt passed in a proceeding to which none of the petitioners were parties, but it was a general order and had the effect of notifying to all concerned in the dispute then under adjudication that, as between those persons and the Nags, the Nags were to be maintained in possession. The petitioners are either servants of Kutubudin, the unsuccessful party in that case, or the purchasers of a share in his estate, and the attempt made to disturb the possession of the Nag family is exactly on the same grounds as set up in that case. That the petitioners were aware of the Magistrate's order is clear, and the only question, therefore, is whether they can properly be punished for direct disobedience to it. That order not only forbade all disturbance with the possession of the Nag family, but referred the opposite party to the Civil Court for a determination of the claim to possession set up by him, It is in consequence of an assertion of this very same claim that the present proceedings were instituted. The facts found show that these petitioners at the instance of Kutubudin have attempted to disturb the possession of the Nags in disobedience of the Magistrate's order, and they are, therefore, liable for the consequences as much as Kutubudin. We are accordingly of opinion that on the facts found by the lower Courts the petitioners have been rightly convicted.

6. It is next objected that the order in question was not a legal order, and that, therefore, the petitioners were not bound to obey it.

7. It appears that instead of putting on the record of this trial as an exhibit the order itself, the Magistrate has made part of that record the whole of the previous record. This, we remark, was a most unusual and unnecessary proceeding, since the only portion of that record which was relevant to this trial was the order itself. Mr. Evans accordingly claimed the right to refer to all these proceedings, and contends that there is nothing to show that the Magistrate recorded a proceeding setting out the grounds upon which he considered that a breach of the peace was imminent, such as would authorize his interference between the parties; and he further contends, on the authority of certain cases decided in this High Court, that the proceedings are bad for want of jurisdiction, and that consequently the order was without authority and cannot be enforced.

8. The cases on this point are, we observe, contradictory, and if it really arose we should feel bound to refer the matter for settlement by a Full Bench; but on examination of the record we find no valid ground for this objection. The Magistrate refers to a Police report which clearly sets out the probability of a breach of the peace, and we must regard that report as forming part of, and incorporated with, the Magistrate's proceeding.

9. We accordingly see no sufficient grounds for interfering as a Court of Revision.

10. The rule is discharged.


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