DIBAKAR TALUKDAR AND ORS. Vs. THE STATE

JUDGEMENT

(1.) THIS rule was obtained by five persons who were convicted under Section 188 of the Indian Penal Code and sentenced to pay a fine of Rs. 100/ - each and in default to undergo simple imprisonment for one month. There was an appeal against this conviction and the same was dismissed by the learned Additional Assistant Sessions Judge.

(2.) THE case for the prosecution is that a proceeding under Section 145 Criminal Procedure Code was drawn up at the instance of one Mst. Narua Dasya in the court of the Magistrate at Gauhati and the same was registered as Miscellaneous Case No. 167 of 1955 wherein the accused persons were made 2nd party. The learned Magistrate, however, could not decide as to which party was in possession and by his order dated 6th of August 1956 directed that the parties might go to the civil court to have their rights declared.

(3.) THIS case was referred to a Division Bench for adjudicating the point, namely, as to whether any party entering into possession of a plot of land attached under Section 145 Criminal Procedure Code could be made liable under Section 188 of the Indian Penal Code for an alleged offence of violating an order prohibiting them to do certain thing or take certain order in regard to property. On a perusal of the appellate court's judgment it is clear that the learned Additional Assistant Sessions Judge had not tried to ascertain whether on merit the requirements of Section 188 Indian Penal Code were fulfilled.