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Taherbhoy Feedaally Vs. I. Ibraham - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 933 of 1952
Judge
Reported inAIR1953Cal507
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144 and 195; ;Indian Penal Code (IPC) - Section 188
AppellantTaherbhoy Feedaally
Respondenti. Ibraham
Advocates:Moni Mukherji and ;Promode K. Mukherji, Advs.
Excerpt:
- .....criminal p. c. was that the petitioner himself did not violate any order of the magistrate. the chief presidency magistrate passed a very curious order. he said that the question whether the petitioner's plea that he did nothing whatever to disobey the order might be decided in the trial of the complaint which he had decided to make. he cannot decide to make any complaint till he actually finds that any order of his has been disobeyed by the per-: son. it is only after someone disobeys an order lawfully pronounced and duly served on him that any question of an offence under section 188, penal code, can arise. the order of the learned chief presidency magistrate, to say the least, was most unwise. before deciding himself whether his order has been violated, he should not, like an.....
Judgment:
ORDER

K.C. Chunder, J.

1. This Rule was issued at the instance of a landlord against whom the Chief Presidency Magistrate decided to make a complaint Under Section 188, Penal Code, for disobeying an order under Section 144, Criminal P. C. The defence of the petitioner before him in the proceeding under Section 144, Criminal P. C. was that the petitioner himself did not violate any order of the Magistrate. The Chief Presidency Magistrate passed a very curious order. He said that the question whether the petitioner's plea that he did nothing whatever to disobey the order might be decided in the trial of the complaint which he had decided to make. He cannot decide to make any complaint till he actually finds that any order of his has been disobeyed by the per-: son. It is only after someone disobeys an order lawfully pronounced and duly served on him that any question of an offence under Section 188, Penal Code, can arise. The order of the learned Chief Presidency Magistrate, to say the least, was most unwise. Before deciding himself whether his order has been violated, he should not, like an ordinary litigant, rush to another Court to have it decided whether his order has been, violated or not. He has taken a point an his explanation as to whether a revision lies. As regards the complaint made by him subsequently, it may be challenged in an appeal under Section 195, Criminal P. C. to his superior officer. Instead of taking any such risk before the executive the petitioner, before the Magistrate made the complaint, moved this Court against his order deciding not to hear and decide the petitioner's objection that he had not violated the order,

2. I cannot congratulate the learned Chief Presidency Magistrate on the order passed. His order was 'not to dismantle a wall.' According to him, as his order shows, if a rack is fixed to the wall it is dismantling the wall. He does not see, even if his knowledge of English did not show it, that one cannot fix racks to a wall which is dismantled. Dismantling means taking down and unless the wall is standing up nothing can be fixed to it.

3. Under the circumstances, the order of the learned Chief Presidency Magistrate is set aside. I am afraid the learned Chief Presidency Magistrate is not correct as regards the forum of appeal against an order directing a complaint to be made under Section 195, Criminal P. C. for an offence under Section 188, Penal Code. The forum of appeal, if he reads Sections 476 and 195 together, will be his superior executive officer. This Court cannot object to an aggrieved person coming to question the justice and the propriety of an order intended to be passed by the learned Chief Presidency Magistrate.

4. The Rule is made absolute and the order of the learned Chief Presidency Magistrate is set aside.


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