BANGSHI DAS Vs. AJIT KUMAR DAS

JUDGEMENT

(1.) On 3/10/1917 petitioner No. 1 and two others namely Netul Das and Sambhu Das filed a petition under section 144 Cr. P.C. before the learned Sub-Divisional Executive Magistrate. Chandernagore. In that petition they inter alia alleged that they are absolute owners and occupiers of a pond situated in Plot No. 1559 and agricultural land in Plots Nos. 1557 and 1558 in Souza Singh herbheri under P.S. Singur in the district of Hooghly that they have right to take water from the said pond for the purpose of irrigating their lands in the aforesaid two plots and, that the petitioners of this revisional application obstructed them from taking water from the said pond for irrigation purpose and that accordingly there was an apprehension of breach of peace. Learned Magistrate received the police report on 7-12-77. On receipt of the police report learned Executive Magistrate passed an ex-parte order of injunction under section 144 of the Cr.P.C. on 9-12-77 restraining the present petitioners from interfering with the work of irrigation of the Plots Nos. 1557 and 1558 with the waters of the said pond and asked the present petitioner to show cause by 6-1-78. This ex-parte order under section 144(2) Cr. P.C. was alleged to have been served on the petitioner on 4-1-78. The present petitioners filed show cause on 27-1-78 challenging the allegation made in the said petition under section 144 Cr. P.C. and denying the alleged right of the present opposite party and two others to take water from the laid pond for the purpose of irrigation and alleging that the petitioners were Joint owners of the said pond. The exparte order passed under section 144(2) Cr. P.C. on 9-11-77 expired on 10-2-78 and it was never made absolute. On 18-1-78 the present opposite party Ajit Kumar has alone filed application before the learned Sub-Divisional Executive Magistrate, Chandernagore under section 188 I.P.C. alleging that on 16-1-78 present petitioners violated the order under section 144(2) Cr. P.C. Learned Sub- Divisional Executive Magistrate, Chandernagore lodged the complaint before the Sub-Divisional Judicial Magistrate. Chandernagore on 9-3-1978.

(2.) The learned Judicial Magistrate, 3rd Court, Chandernagore who disposed of the application under section 188 I.P.C. found that although the accused persons (the present petitioners) themselves were not restrained from using the water of the pond they were restrained from interfering with the Irrigation work of the petitioners namely the opposite party No. 1 and he found on the basis of the evidence adduced on behalf of the opposite party Ajit Das that after the promulgation of the order, that order was violated and annoyance and injury was caused to the petitioner (that is the present opposite party No. 1). He accordingly held that prosecution case has been proved and found the present petitioners guilty under section 188 I.P.C. and sentenced each of them to suffer simple Imprisonment for 15 days and to pay a fine of Rs. 50.00.

(3.) Being aggrieved by that order of the learned Judicial Magistrate, Chandernagore the present petitioners preferred the Criminal Appeal No. 78/83 before the learned Session. Judge, Hooghly which was heard and dismissed by the learned Additional Sessions Judge, First, Court, Hooghly who considered four points urged before him by the learned Advocate for the appellants.