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Nagendro Nath Biswas Vs. Rakhal Das Sinha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in49Ind.Cas.97
AppellantNagendro Nath Biswas
RespondentRakhal Das Sinha and ors.
Cases ReferredBykuntram Shaha Roy v. Meajan
Excerpt:
criminal procedure code (act v of 1898), sections 144, 195 - penal code (act xlv of 1860), section 188--order prohibiting holding of rival hat, validity of--disobedience of order--offence--sanction for prosecution. - 1. this is a rule calling on the district magistrate and the opposite party to show cause why on grounds nos. 2, 3, 5 and 6 set out in the petition the order revoking the sanction should not be set aside. the facts are short. under the powers conferred by section 144, criminal procedure code, an order was made restraining the opposite party from holding a-hat on his land at or near peruli on mondays and fridays. he disobeyed that order apparently; or, at any rate, there was ground for prima facie believing that he had. an application was made to the sub divisional magistrate for sanction to prosecute the opposite party for an offence committed under section 188, indian penal code. the sub-divisional magistrate granted the sanction. after the sanction had been granted by the sub divisional.....
Judgment:

1. This is a Rule calling on the District Magistrate and the opposite party to show cause why on grounds Nos. 2, 3, 5 and 6 set out in the petition the order revoking the sanction should not be set aside. The facts are short. Under the powers conferred by Section 144, Criminal Procedure Code, an order was made restraining the opposite party from holding a-hat on his land at or near Peruli on Mondays and Fridays. He disobeyed that order apparently; or, at any rate, there was ground for prima facie believing that he had. An application was made to the Sub Divisional Magistrate for sanction to prosecute the opposite party for an offence committed under Section 188, Indian Penal Code. The Sub-Divisional Magistrate granted the sanction. After the sanction had been granted by the Sub Divisional Magistrate, an application was made to the Sessions Judge to set aside the sanction on the ground that the order under Section 144, Criminal Procedure Code, was ultra vires and inoperative. The learned Sessions Judge thought that that was so and he set aside the sanction. Hence the present Rule.

2. It is quite clear that the learned Sessions Judge was wrong in law The case is covered by the Full Bench decision of this Court in the case of Bykuntram Shaha Bop v. Meajan 18 W.B.Cr. 47 : 10 B.L.R. (F.B.) 434 and also the case of Parbutty Charan Aich v. Queen-Empress 16 C. 9 : 13 Ind. Jur. 143 : 8 Ind. Dec. (N.S.) 6. The Full Bench decision reported as Bykuntram Shaha Roy v. Meajan 18 W.B.Cr. 47 : 10 B.L.R. (F.B.) 434 clearly was not decided on the facts of that particular case but was an order in substance the same as the order made in the present case. If it was a good and valid order and was duly promulgated and the opposite party knew it, he was bound to obey it; and if he disobeyed it, he was liable to be punished under Section 188, Indian Penal Code, provided that sanction was given under Section 195, Criminal Procedure Code, for the conduct of the prosecution. It is quite clear that the Order of the learned Sessions Judge setting aside the sanction was wholly wrong.

3. We, therefore, set aside the order of the Sessions Judge and restore the order of the Sub-Divisional Magistrate granting, sanction under Section 195, Criminal Procedure Code, for the prosecution of the opposite party for an offence punishable under Section 188, Indian Penal Code.


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