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Shama Charan Das Vs. Kasi Naik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in(1896)ILR23Cal971
AppellantShama Charan Das
RespondentKasi Naik
Excerpt:
sanction to prosecute - code of criminal procedure (act x of 1882), sections 195, 439--penal code (act xlv of 1860), section 210--superintendence of high court--code of civil procedure (act xiv of 1882), section 622. - .....declined to entertain it, being of opinion that, inasmuch as appeals against judgments passed by a deputy collector under act x of 1859 would not ordinarily lie to him, but to the collector, he was not competent to entertain the application and afford any relief to the petitioner in the matter. thereupon, an application was made to this court, and a rule was granted calling upon the other side to show cause why the order of the district judge should not be set aside, or why, in the alternative, this court should not make such an order, if any, in respect of the sanction as to this court might seem just.2. we might here mention that the value of the suit-which was one for rent, and in which the order complained against was made,-was below rs. 100, and that therefore no appeal would lie to.....
Judgment:

Ghose and Gordon, JJ.

1. The subject-matter of this rule is an order by the Deputy Collector of Cuttack, acting under the provisions of Act X of 1859. The order was an order giving sanction for the prosecution of the petitioner under Section 210 of the Indian Penal Code. An application was made to the District Judge for the revocation of this sanction; but that officer declined to entertain it, being of opinion that, inasmuch as appeals against judgments passed by a Deputy Collector under Act X of 1859 would not ordinarily lie to him, but to the Collector, he was not competent to entertain the application and afford any relief to the petitioner in the matter. Thereupon, an application was made to this Court, and a rule was granted calling upon the other side to show cause why the order of the District Judge should not be set aside, or why, in the alternative, this Court should not make such an order, if any, in respect of the sanction as to this Court might seem just.

2. We might here mention that the value of the suit-which was one for rent, and in which the order complained against was made,-was below Rs. 100, and that therefore no appeal would lie to the Judge against the judgment of the Deputy Collector in that suit. And we are not prepared to say that the Judge was wrong in the view that he has expressed, namely, that appeals against decrees and orders made by a Deputy Collector, acting under the provisions of Act X of 1859, ordinarily lie to the Collector, and not to him as Judge of the District. It is however unnecessary to examine this question any further; because we have thought it right and proper to deal with the application of the petitioner under Section 439 of. the Code of Criminal Procedure, which gives ample authority to the High Court in this matter.

3. It appears that the petitioner, having obtained a decree in the Court of the Deputy Collector for rent, presented an application for the execution thereof. Thereupon, a notice was issued, calling upon the judgment-debtor, the opposite party, to show cause why the decree should not be executed. He appeared and stated that the decree in question had been satisfied out of Court, and offered evidence in support of that statement. The Deputy Collector rightly or wrongly (as to which we need not express any opinion) went into that evidence, and being of opinion that the decree had been satisfied by the judgment-debtor in the manner alleged by him, dismissed the application for execution; and at the same time made an order sanctioning the prosecution of the petitioner for an offence under Section 210 of the Indian Penal Code.

4. That section runs thus: 'Whoever fraudulently obtains a decree or order against any person for a sum not due, or for any property or interest in property to which he is not entitled, or fraudulently causes a decree or order to be executed against any person after it has been satisfied, or for anything in respect of which it has been satisfied, or fraudulently suffers or permits any such act to be done in his name, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or both.'

5. The offence with which the petitioner is charged is, as we understand it, that he has caused the decree to be executed against the opposite party after it had been satisfied.

6. It seems to us that the view that has been adopted in this connection by the Deputy Collector is erroneous; because, though, no doubt, an application was presented by the petitioner for the execution of the decree in question, yet the decree was not caused to be executed against the opposite party. What was done was simply that an application for the execution of the decree was presented, and a notice was thereupon issued, calling upon the opposite party to show cause why the decree should not be executed; and the Deputy Collector, being of opinion that the decree had already been satisfied, ordered that it should not be executed. We think that, under the circumstances, no offence under Section 210 of the Indian Penal Code could have been committed.

7. In this view of the matter, we think that the order of the Deputy Collector, dated the 2nd of January 1895, sanctioning the prosecution of the petitioner for an offence under Section 210 of the Indian Penal Code, should be revoked; and we accordingly direct that the rule be made absolute.

8. No. 1335.-For the reasons already stated, this rule should also be made absolute.


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