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Nazar HusaIn Vs. Emperor Through Babu Ram - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1920All55; 55Ind.Cas.341
AppellantNazar Husain
RespondentEmperor Through Babu Ram
Excerpt:
criminal procedure code (act v of 1898), sections 435, 438 - discharge, order of--additional sessions judge, power of, to set aside order and direct further inquiry. - - 1,500. he stated that he would not have executed this mortgage, if he had known that the accused bad on the 15th april 1918 transferred to his wife 6 1/4 biswas in this village. i direct that the order of discharge be set aside and that the magistrate, after hearing all evidence, oral or documentary, that may be laid before him, proceed to a perfect decision upon the complaint......the case is a fit one for further enquiry. i set aside the order of discharge and direct that nazar husain be tried afresh according to law for the offense of cheating under section 420.2. an application has been made to this court asking that this order of the additional sessions judge of meerut be revised. i purposely abstain from commenting any further upon the facts of the case. it would be difficult, if i did, perhaps impossible, to abstain from setting forth my views upon the case as it now stands and prejudicing either nazar husain or babu ram. i have heard. the learned counsel who appears for nazar husain, on the first plea, that the additional sessions judge may be without jurisdiction to order further enquiry. this plea, i think, is not a plea that can prevail the case was.....
Judgment:

George Knox, J.

1. One Babu Ram Mahajan, on the 7th of July 1919, charged Nazar Husain, Zamindar of Mauza Thendera, with having cheated him. In his complaint he said that the accused on the 8th of May 1918 mortgaged to him 3 biswas out of 10 biswas in Mauza Thendera on consideration of Rs. 1,500. He stated that he would not have executed this mortgage, if he had known that the accused bad on the 15th April 1918 transferred to his wife 6 1/4 biswas in this village. The complaint was made in the Court of the District Magistrate of Muzaffarnagar. The Magistrate proceeded to hear the complaint but on the 13th of August 1919 discharged the accused under Section 253 of the Criminal Procedure Cede. The Additional Sessions Judge of Meerut on going through the record of the Magistrate's Court passed an order to this effect:

In my opinion the case is a fit one for further enquiry. I set aside the order of discharge and direct that Nazar Husain be tried afresh according to law for the offense of cheating under Section 420.

2. An application has been made to this Court asking that this order of the Additional Sessions Judge of Meerut be revised. I purposely abstain from commenting any further upon the facts of the case. It would be difficult, if I did, perhaps impossible, to abstain from setting forth my views upon the case as it now stands and prejudicing either Nazar Husain or Babu Ram. I have heard. the learned Counsel who appears for Nazar Husain, on the first plea, that the Additional Sessions Judge may be without jurisdiction to order further enquiry. This plea, I think, is not a plea that can prevail The case was one transferred by the Sessions Judge of Meerut to the Additional Sessions Judge, and this in my opinion did confer a jurisdiction upon the: Additional Sessions Judge, to examine the record under Section 435, Criminal Procedure Code (see Section 438, Clause 2). I also hold that there are matters which can be enquired into by the District Magistrate, into which the District Magistrate has not enquired and which are necessary to complete a proper decision on the subject-matter of the complaint. Further than that 1 decline to go. I am not here to suggest to the complainant on the one side or to Nazar Husain on the other, matter that may be for consideration by the District Magistrate. The application for revision to this Court is dismissed. I direct that the order of discharge be set aside and that the Magistrate, after hearing all evidence, oral or documentary, that may be laid before him, proceed to a perfect decision upon the complaint. Let the record be returned.


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