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Tarini Mohan De Sarkar and anr. Vs. Dwarak Nath Banikya Poddar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Reported inAIR1934Cal556,150Ind.Cas.600
AppellantTarini Mohan De Sarkar and anr.
RespondentDwarak Nath Banikya Poddar and ors.
Cases ReferredHari Mati Dasi v. Hari Dasi Dasi
Excerpt:
- .....of the section is supported by the decision of this court in the case of hari mati dasi v. hari dasi dasi : air1925cal991 in which the reasoning in support of the said interpretation have been given in full. our attention has been drawn by the learned advocate appearing for the first party to a recent decision of this court in criminal revision no. 562 of 1933, headed kajir naskar v. tabraj naskar : air1933cal752 which has not been reported in any of the authorized reports, we have looked into the facts of that case and the judgment passed therein. it appears however that the attention of the learned judges was not drawn to the decision reported in hari mati dasi v. hari dasi dasi : air1925cal991 , referred to above. we therefore hold that section 147, sub-section (2) really.....
Judgment:

Nasim Ali, J.

1. This is a Reference Under Section 438, Criminal P. C, made by the Additional Sessions Judge of Mymen-singh, in the matter of a proceeding Under Section 147, Criminal P. C, recommending that the order of the Sub-Divisional Magistrate of Tangail in the said proceeding so far as it directed the second party to remove a part of the tin chapra in question, should be set aside. The recommendation of the learned Sessions Judge is supported by the words of Sub-section (2), Section 147, Criminal P. C, which runs as follows:

If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right.

2. The words used in the sub-section contemplate only a prohibitory order and not a mandatory order to do some positive act. This interpretation of the section is supported by the decision of this Court in the case of Hari Mati Dasi v. Hari Dasi Dasi : AIR1925Cal991 in which the reasoning in support of the said interpretation have been given in full. Our attention has been drawn by the learned advocate appearing for the first party to a recent decision of this Court in Criminal Revision No. 562 of 1933, headed Kajir Naskar v. Tabraj Naskar : AIR1933Cal752 which has not been reported in any of the authorized reports, We have looked into the facts of that case and the judgment passed therein. It appears however that the attention of the learned Judges was not drawn to the decision reported in Hari Mati Dasi v. Hari Dasi Dasi : AIR1925Cal991 , referred to above. We therefore hold that Section 147, Sub-section (2) really contemplates a prohibitory order and not a mandatory order. In this view of the matter, we accept the reference and direct that the concluding portion of the order of the learned Magistrate, directing the second party to remove any part of the tin chapra that may be within four feet of the west wall of the dispensary by 7th September 1933, be set aside.

Guha, J.

I agree.


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