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In Re: Dnyanoba Pandurang Bamne - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application for Revision No. 274 of 1912
Judge
Reported in(1913)15BOMLR57
AppellantIn Re: Dnyanoba Pandurang Bamne
DispositionApplication allowed
Excerpt:
criminal procedure code (act v of 1898), section 133-'magistrate-inquiry- jurisdiction.;under section 133 et seq. of the criminal procedure code, 1898, the inquiring magistrate has to consider whether there is or there is not a bona fide private claim to title. if he finds that there is such a bona fide claim, he is debarred from proceeding further. but if he is of opinion that there is no bonafide claim of private title, he is to proceed as indicated in the sections of the code.;it is not competent to the magistrate in such an inquiry to select certain evidence, to discard other evidence on the ground that even if 'taken by him he would not believe it, and then to proceed to determine the very question of title involved. - - that was clearly outside his jurisdiction......1911. that order, as we read it, is based upon the report made by the mamlatdar and second class magistrate apparently in november 1911. now this report of the second class magistrate shows, we think, that he misapprehended his legal authority under section 133 and following of the criminal procedure code. under those sections what the inquiring magistrate has to consider is whether there is or is not a bona fide private claim to title. if he finds that there is such a bona fide claim then under the rulings of the courts he is debarred from proceeding further: see in re mahay and shri jaswatsangji ilr (1897)22 bom. 988; in re narayan jivan mestri (1902) 4 bom. l.r. 687; and emperor v. dost muhammad ilr (1905) all. 98. if the magistrate is of opinion that there is no bonafide.....
Judgment:

Batchelor, J.

1. We think that owing to the material irregularities which have occurred in the conduct of these proceedings we must make the rule absolute and discharge the order made by the Sub-divisional Magistrate on the 22nd December 1911. That order, as we read it, is based upon the report made by the Mamlatdar and Second Class Magistrate apparently in November 1911. Now this report of the Second Class Magistrate shows, we think, that he misapprehended his legal authority under Section 133 and following of the Criminal Procedure Code. Under those sections what the inquiring Magistrate has to consider is whether there is or is not a bona fide private claim to title. If he finds that there is such a bona fide claim then under the rulings of the Courts he is debarred from proceeding further: see In re Mahay and Shri Jaswatsangji ILR (1897)22 Bom. 988; In re Narayan Jivan Mestri (1902) 4 Bom. L.R. 687; and Emperor v. Dost Muhammad ILR (1905) All. 98. If the Magistrate is of opinion that there is no bonafide claim of private title, then he is to proceed as indicated in the sections of the Code. But what the Magistrate here purports to have done, as we read his report, is this: selecting for his decision certain evidence, and discarding other evidence, because he says that even if taken by him he would not believe it, he proceeds to determine the very question of title involved. That was clearly outside his jurisdiction. It was sought to save the order on the ground that the applicant though he had notice to appear on the 22nd July, did not appear on that date; and therefore it is urged the Magistrate would have been entitled to proceed under Section 136 and to make the order absolute forthwith. That, however, is not what the Magistrate did. On the contrary he very rightly allowed the applicant a further opportunity to appear before the Second Class Magistrate, and the applicant did so appear. This concussion being made, we are of opinion that matters were in the legal position contemplated by Section 137, and that the Second Class Magistrate was bound to make the inquiry prescribed by that section. Since no such inquiry was made we must make the present rule absolute. This order will not preclude the Magistrates from taking any further legal action which they may desire to take.


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