HAPPY HOME, FISCAL SERVICE PVT. LTD. AND PAHARPUR COOLING TOWERS LTD. v. STATE
1995-08-09
N.K.BHATTACHARYYA
body1995
DigiLaw.ai
NRIPENDRA KUMAR BHATTACHARYYA, J. ( 1 ) AFTER hearing the learned Advocate for the petitioners, Mr. Milon Mukherjee appearing with the learned Advocates Mr. Amiya Narayan Mukherjee and Mr. Pradyumna Sinha, and in con sideration of the materials on record, it appears that this revisional application under S. 482 of the Code of Criminal Procedure can be disposed of without directing the petitioner to serve notice along with copies of this application upon the opposite parties. ( 2 ) BY this revision the petitioners have prayed for a direction upon the opposite party, meaning the Superintendent of Police, South 24-Parganas, and the Officer-in-Charge, Maheshtola Police Station, to ensure that free ingress and egress and free move ment of the men, materials and vehicles of the petitioners to and from the godown of the petitioners situated at Shampa Mirza Nagar is not obstructed and/or interfered with by the workers of M/s. Stad Pack Private Limited in any manner whatsoever and also for a direction upon the said authorities to ensure that the entrance gate and passage of the petitioners' godown at Shampa Mirza Nagar is not blocked. The petitioners also prayed for a further direction upon the opposite parties to ensure that the petitioner company is in a position to carry on its activities and the executives and staff of the com pany are not in any way prevented and to carry out the order dated 12/06/1995 passed by the learned Executive Magistrate in M. P. Case No. 1944 of 1995. ( 3 ) THE petitioners made an application before the Court of the learned Executive Magistrate, 2nd Court, Alipore, 24-Parganas (South), under S. 144 (2) of the Code of Criminal Procedure, and on 12/06/1995, the learned Magistrate passed a restric tive order and the order was served upon the police authorities who are the opposite parties herein being Nos. 2 and 3, but without any effect. Hence this revisional application with the prayer as mentioned earlier. ( 4 ) APPEARING for the petitioner company, Mr.
2 and 3, but without any effect. Hence this revisional application with the prayer as mentioned earlier. ( 4 ) APPEARING for the petitioner company, Mr. Milon Mukherjee, learned Advocate, contended with reference to S. 482 of the Code of Criminal Proce dure that the said Section provides inter alia that nothing in the Code of Criminal Procedure shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code (under scoring by this Court ). He further contended that the 'code' as referred to in S. 482 of the Code of Criminal Procedure refers to the 'code' of the Crimi nal Procedure. According to him, the 'code' of the Criminal Procedure, 1973 provides for provision for execution in case of an order passed under S. 125 of the Code of Criminal Procedure and in case of default regarding payment of maintenance under S. 128 of the Code of Criminal Procedure, but there is no such provision in reference to Ss. 134 and 144 of the Code of Criminal Procedure. As such, in order 'to give effect to' the order passed by any Magistrate under Ss. 134 and 144 of the Code of Criminal Procedure, the High Court should exercise its inher ent power under S. 482 of the Code of Criminal Procedure. Mr. Mukherjee further submits that there is no specific case on this point save and except an unreported decision of this Court in the case of Ajit Dey v. Rabindra Chandra Dey in Criminal Revision No. 2557 of 1993, where the learned single Judge by recording the opinion of the learned Advocate came to a finding that under S. 482 of the Code of Criminal Procedure direction can be given upon the police. As Mr. Mukherjee referred to S. 128 of the Code of Criminal Procedure dealing with the matter of ex ecution of the order passed under S. 125 of the Code of Criminal Procedure, the question arises about the meaning of the expression 'execution'. ( 5 ) THE Shorter Oxford English Dictionary, Vol ume I, 1990 Edn. gives the meaning of the word 'execute' as follows :- 'follow up', 'carry out, 'pursue judicially', 'punish', 'to follow out', 'carry into effect'; 'to give effect to', 'to carry out', 'per form'.
( 5 ) THE Shorter Oxford English Dictionary, Vol ume I, 1990 Edn. gives the meaning of the word 'execute' as follows :- 'follow up', 'carry out, 'pursue judicially', 'punish', 'to follow out', 'carry into effect'; 'to give effect to', 'to carry out', 'per form'. The other meaning are there, which are not necessary for decision of this case here. ( 6 ) IN Black's Law Dictionary, 6th Edn. at page 567 the word 'execute' means 'to complete'; ; to make'; 'to sign" 'to perform'; 'to do'; 'to follow out'; 'to carry out according to its terms'; 'to fulfill the command or purpose of'; 'to perform all neces sary formalities, as to make and sign a contract, or sign and deliver a note. ' ( 7 ) SO it appears from the dictionary meaning of the word 'execute' is to carry out, to follow up and to pursue judicially. It is against all canons of legal jurisprudence that any superior Court should be asked to carry out the order of the subordinate Court or to pursue judicially the order of the subordinate Court or to follow up the order of subordinate Court. The Legislature in its wisdom did not use the word 'execute' in S. 482, Cr. P. C. ( 8 ) I am not oblivious of the submission of Mr. Mukherjee that one of the meaning of the word 'executive' is to give effect to; but the meaning is to be understood in the context in which it has been used. Surely the word that has been used in S. 482 of the said Code does not mean that the High Court should carry out the order of the subordinate Court or to pursue judicially the order of the subordinate Court or to follow up the order of the subordinate Court. The word that has been used and employed in S. 482 is 'to give effect to' and not to execute. So the meaning 'to give effect to' in the context it has been referred to in S. 482 cannot be synonymous with the meaning of the word 'execute'. It is also one of the fundamental principles that in order to gather the meaning of Section it must be borne in mind that no word in Section is used without any purpose. So the use of the words 'to give effect to' surely has a meaning.
It is also one of the fundamental principles that in order to gather the meaning of Section it must be borne in mind that no word in Section is used without any purpose. So the use of the words 'to give effect to' surely has a meaning. ( 9 ) MR. Mukherjee with all his command at hand contended that unless the Court, meaning the High Court, by invoking its inherent power under S. 482 of the Code of Criminal Procedure comes in aid to the order passed by the learned Executive Magis trate no remedy will be left open for the person who has moved the learned Executive Magistrate in case of non-action or inaction on the part upon whom it has been directed to carry out. ( 10 ) VIOLATION of the order in case of inaction or non-action upon whom direction has been given to carry out the order is not without any remedy. The remedy lies under S. 188, I. P. C. or to a principle akin to that. I am not oblivious of the position that S. 188 of the Indian Penal Code is available in case of public servant. Where a petition has been filed before the learned Executive Magistrate by a public servant and what should be the duty of the High Court, that has been specified in the case of Sandip Kumar Ghosh v. Brojobala Das reported in (1984) 88 Cal WN 249. Ordinarily the Magistrate cannot pass an order in terms of S. 188, I. P. C. if the application has not been filed by a public servant. But, the Magistrate can call upon him by giving direction to proceed against the authorities who are directed to carry out that order. ( 11 ) ACCORDINGLY, in exercise of my power under S. 482 of the Code of Criminal Procedure. I direct the learned Executive Magistrate to take appropriate action against the police officers for carrying out the order of the learned Magistrate. ( 12 ) THIS revisional application is disposed of accordingly. ( 13 ) THIS judgment shall govern the other case in re : Happy Home, Fiscal Service (P) Ltd. , repre sented by its Director Sashi Bhusan Lodha. Order accordingly.