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Kali Mohan Kar and ors. Vs. Nakari Chandra Das - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.722
AppellantKali Mohan Kar and ors.
RespondentNakari Chandra Das
Excerpt:
criminal procedure code (act v of 1898), sections 133, 137, 140 - conditional order vague and indefinite--final order bad. - .....case without deciding that your petitioner's claim was not bona fide;' and, 'iii. that the order passed is vague and indefinite and fit to be set aside.' the first ground manifestly must fail, because it was not taken before the sessions court, and we, therefore, cannot give effect to it here; after careful consideration, and not without some reluctance we have come to the conclusion that on the third' ground we must make the rule absolute, for we are of opinion that the order passed is too vague and indefinite, and should, therefore, be set aside. our reason for considering that the order is too vague and indefinite, and, therefore, should be set aside, is that the persons against whom it is directed cannot learn from its terms what it is that they are to do for the purpose of.....
Judgment:

1. This is an application which arises of proceedings under Chapter X of the Criminal Procedure Code, and the Rule issued is to show cause why the order complained of should not be set aside on the first and third grounds stated in the petition. Those grounds are: 'I. That the Deputy Magistrate had no jurisdiction to proceed with the case without deciding that your petitioner's claim was not bona fide;' and, 'III. That the order passed is vague and indefinite and fit to be set aside.' The first ground manifestly must fail, because it was not taken before the Sessions Court, and we, therefore, cannot give effect to it here; after careful consideration, and not without some reluctance we have come to the conclusion that on the third' ground we must make the Rule absolute, for we are of opinion that the order passed is too vague and indefinite, and should, therefore, be set aside. Our reason for considering that the order is too vague and indefinite, and, therefore, should be set aside, is that the persons against whom it is directed cannot learn from its terms what it is that they are to do for the purpose of complying with it, and this is no trivial matter, for under Section 140, disobedience to the order renders the defaulter liable to the penalty provided by Section 188 of the Indian Penal Code; in other words, disobedience to the order may have the effect of rendering a person liable to somewhat serious penal consequences. Had it been possible for us to send back the case for re-consideration by the Magistrate we would have done so but having regard to the terms of Section 137, we think that no useful purpose can possibly be served by sending the case back, for the vice really rests not in the final order but in the conditional order. Moreover, although the petitioner is precluded from taking the point before as, we can see that this is a case where there may be, as is alleged, a bona fide claim to a right.

2. In these circumstances we make the Rule absolute, and set aside the order that has been passed.

3. Whether or not fresh proceedings should be instituted will be a matter for the Magistrate to consider; on that point we express no opinion.


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