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Dakhineswar Misra and ors. Vs. Haris Chundra Chatterji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in4Ind.Cas.368
AppellantDakhineswar Misra and ors.
RespondentHaris Chundra Chatterji
Cases ReferredHem Chandra Roy v. Atal Behary Roy
Excerpt:
criminal procedure code (act v of 1898), section 476 - execution proceeding--judicial proceeding--prosecution, sanction for. - .....1908. when the officers of the court went to effect the attachment, they were resisted by the present petitioners. the peon reported to the court that he could not find the judgment-debtor and when he attempted to seize the movables, resistance was offered by the present petitioners. the court thereupon held an enquiry and made an order under section 476 of the criminal procedure code for prosecution of the petitioners for an offence under section 183 of the indian penal code. on behalf of the petitioners it has been argued that an execution proceeding is not a judicial proceeding, and that consequently section 476 of the criminal procedure code has no application. in our opinion this contention has no foundation. the cases upon which reliance has been placed are clearly.....
Judgment:

1. We are invited in this Rule to set aside an order of the Courts below made under Section 476 of the Criminal Procedure Code. In support of the Rule it has been urged that the offence for which the prosecution of the petitioners was ordered was not brought to the notice of the Court in the course of a judicial proceeding; and in support of this view reliance has been placed upon the cases of Hara Charan Mookerjee v. The King Emperor 32 C. 367; 1 C.L.J. 161; 9 C.W.N. 364; 2 Cr. L.J. 110 and Kanto Ram Das v. Gobardhun Das 35 C. 133; 7 Cr. L.J. 159. It appears that the Court below directed the attachment of certain movable properties of the judgment-debtor in execution of a decree for money obtained on the 7th December 1908. When the officers of the Court went to effect the attachment, they were resisted by the present petitioners. The peon reported to the Court that he could not find the judgment-debtor and when he attempted to seize the movables, resistance was offered by the present petitioners. The Court thereupon held an enquiry and made an order under Section 476 of the Criminal Procedure Code for prosecution of the petitioners for an offence under Section 183 of the Indian Penal Code. On behalf of the petitioners it has been argued that an execution proceeding is not a judicial proceeding, and that consequently Section 476 of the Criminal Procedure Code has no application. In our opinion this contention has no foundation. The cases upon which reliance has been placed are clearly distinguishable. In Hara Charan Mookerjee v. The King-Emperor 32 C. 367; 1 C.L.J. 161; 9 C.W.N. 364; 2 Cr. L.J. 110 resistance was offered at the stage of delivery of possession to a purchaser, and it was held by the majority of the Court that delivery of possession was not a judicial proceeding. In Kanto Ram v. Gobardhan Das 35 C. 133; 7 Cr. L.J. 159 the question arose as to whether fraud committed in taking out execution of a satisfied decree was fraud committed in the course of a judicial proceeding. The question was not argued, but the learned Government pleader who appeared on behalf of the Crown admitted that the decision of this Court in Hara Charan Mookerjee v. The King-Emperor 32 C. 367; 1 C.L.J. 161; 9 C.W.N. 364; 2 Cr. L.J. 110 supported the view that the offence was not committed in the course of a judicial proceeding. It is not necessary for us to express any opinion upon the correctness of the decision in Kanto Ram v. Gobardhan Das 35 C. 133; 7 Cr. L.J. 159 first, because the facts of that case are distinguishable from those of the case now before us, and secondly, because the case was decided upon an admission made by the Government Pleader. We may add that if a question arose as to the correctness of the decisions in Hara Charan Mookerjee v. The King-Emperor 32 C. 367; 1 C.L.J. 161; 9 C.W.N. 364; 2 Cr. L.J. 110 and Kanto Ram v. Gobardhan Das 35 C. 133; 7 Cr. L.J. 159 we would be prepared to refer the matter for decision to a Full Bench. The case now before us, however, is completely covered by the decision in Bhola Nath Dey v. The Emperor 10 C.W.N. 55; 3 Cr. L.J. 142. In that case the decree-holder proceeded to execute a warrant of attachment of movable properties of the judgment-debtor. He was prevented by the judgment-debtor and several other persons who beat the decree-holder and threatened the peon. The peon reported the matter to the Court and the decree-holder also made a complaint. The Court held an enquiry and under Section 476 of the Criminal Procedure Code, ordered the prosecution of the offenders under Section 183 of the Indian Penal Code. On this state of the facts, it was held by this Court that the Munsif was quite competent to make the order under Section 476, inasmuch as the facts on which he directed the prosecution came to his knowledge while he was engaged in a judicial proceeding, namely in a proceeding in an execution case which had not been finally disposed of. It is not suggested on behalf of the petitioners that the present case is in any way distinguishable from the case mentioned.

2. The result, therefore, is that this Rule must be discharged. We make no order as to costs.

3. We may add that a question might arise whether it, was competent to this Bench to consider this Rule. In the case of Kali Prosad Chatterjee v. Bhuban Mohini Dasi 8 C.W.N. 73 it was held that cases of this description should be heard by the Civil Bench, whereas in the case of Hem Chandra Roy v. Atal Behary Roy 35 C. 909 a doubt was raised as to whether the case ought not to be heard by the Criminal Bench. In the present case, however, the Chief Justice has directed that the case should be heard by this Bench as at present constituted. It is not necessary, therefore, to consider any question of jurisdiction.


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