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Superintendent and Remembrancer of Legal Affairs Vs. Khoda Baksha Shah - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in148Ind.Cas.808
AppellantSuperintendent and Remembrancer of Legal Affairs
RespondentKhoda Baksha Shah
Excerpt:
penal code (act xlv of 1860), section 188 - criminal procedure code (act v of 1898), section 133--proceedings under--validity of final order--proceedings for disobedience of order--validity of prior order, if can be questioned in trial--objection as to non-impleading of a co-sharer in proceedings--whether can be made in trial for offence - .....murshidabad, dated january 13, 193%, acquitting the accused khodabaksh shah under section 245, criminal procedure code, of an offence punishable under section 188 indian penal code, that is disobedience of an order duly promulgated by a public servant. the order which was promulgated in this case and which was a valid and operative order, so far as the respondent was concerned was made by a competent authority under section 133, criminal procedure code. the fact of the promulgation of the order made under section 133 was not denied and was duly proved before the trying magistrate in the case. that a public servant can promulgate an order lawfully empowered to promulgate the same is not denied before us. on the evidence to which reference has been made by the learned magistrate in his.....
Judgment:

1. Judgment. This is an appeal by the Local Government under Section 417 Criminal Procedure Code and is directed against an order of the Deputy Magistrate, First Class of Berhampur, district Murshidabad, dated January 13, 193%, acquitting the accused Khodabaksh Shah under Section 245, Criminal Procedure Code, of an offence punishable under Section 188 Indian Penal Code, that is disobedience of an order duly promulgated by a public servant. The order which was promulgated in this case and which was a valid and operative order, so far as the respondent was concerned was made by a competent authority under Section 133, Criminal Procedure Code. The fact of the promulgation of the order made under Section 133 was not denied and was duly proved before the trying Magistrate in the case. That a public servant can promulgate an order lawfully empowered to promulgate the same is not denied before us. On the evidence to which reference has been made by the learned Magistrate in his order of acquittal there was clearly a direction on the accused to abstain from doing a certain act and the accused certainly knew of that direction to him; there was on the facts proved in the case disobedience of the direction. In the circumstances, the order of acquittal passed by the learned Magistrate in this case under Section 245, Criminal Procedure Code, cannot in our judgment b supported.

2. The defence raised by the respondent Khodabaksha Shah related to the validity of the final order made in the proceedings under Section 133. Such a question could not be raised at the trial of the accused for an offence under Section 188, Indian Penal Code. A point appears to have been raised that the respondent Khodabaksha Shah was not alone responsible for the obstruction as he had another co-sharer who had not been made party to the proceedings under Section 133 in which the question of obstruction was enquired into. This was not a case which was made before the Court at any previous stage, nor was it a ease made before the Court which passed the order under Section 133. In view of the order promulgated by a competent authority under Section 133 and in view of the disobedience of the order By the accused; against whom the order was promulgated he was liable to conviction under Section 188, Indian Penal Code.

3. Our order therefore is that on the facts and in the circumstances of the case, and as we are clearly of opinion that the disobedience of the order under Section 133 tends to cause riot, we allow the appeal and impose a fine of Rs. 500 on Khodabaksha Shah and direct that in default of payment of the fine, the said Khodabaksh Shah will undergo rigorous imprisonment for six weeks.


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