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JiaratdIn Mohammed and ors. Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in67Ind.Cas.200
AppellantJiaratdIn Mohammed and ors.
RespondentEmperor
Excerpt:
penal code (act xlv of 1860), section 188 - criminal procedure code (act v of 1898), section 144, order under, legality of, whether can be questioned. - .....of the appeals, it was urged that there was no necessity of an order under section 144 of the code of criminal procedure. the question of the legality of the order does not appear to have been properly considered by the lower appellate court. that court appears to have held that the order must be held to have been legally passed because an application to the high court against that order failed. but the application was rejected by this court on the ground that at the time it was made the period of the order had elapsed and it was staled when the order was pasted that the question of the legality of the order could be raised at the trial of the petitioners should they be prosecuted under section 188, indian penal code. we, therefore, direct that the orders passed by the appellate.....
Judgment:

1. These two Rules are directed against a conviction of the petitioners under Section 188, Indian Penal Code. They were convicted on two trials; but the appeals against the conviction were beard jointly by the learned District Magistrate of Dinajpore. The convictions, were based on the disobedience of an order under Section 144, Criminal Procedure Code, which was passed by the Sub-Divisional Magistrate of Thakurgaon forbidding the people in general especially the proprietor of Nitbazar hat contiguous to Lahiri hat which was owned by a different proprietor to hold the Nitbazar hat on Mondays and Fridays, At the hearing of the appeals, it was urged that there was no necessity of an order under Section 144 of the Code of Criminal Procedure. The question of the legality of the order does not appear to have been properly considered by the lower Appellate Court. That Court appears to have held that the order must be held to have been legally passed because an application to the High Court against that order failed. But the application was rejected by this Court on the ground that at the time it was made the period of the order had elapsed and it was staled when the order was pasted that the question of the legality of the order could be raised at the trial of the petitioners should they be prosecuted under Section 188, Indian Penal Code. We, therefore, direct that the orders passed by the Appellate Court in there two cases be set aside and the appeals be re-heard. We thick it desirable, as requested by the petitioner's Vakil, that the appeals should be re-heard not by the District Magistrate but by the Sessions Judge; and we order accordingly.


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