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Mariasusai Udayan and ors. Vs. Hajee Mahamud Azeaudeen Sahib Bahadur - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in164Ind.Cas.689
AppellantMariasusai Udayan and ors.
RespondentHajee Mahamud Azeaudeen Sahib Bahadur
Excerpt:
criminal procedure code (act v of 1898), section 145(1), (6) - dispute as to immovable property--preliminary order under section 145(1), necessity of--want of objection by parties, effect of. - .....the learned sub-divisional magistrate from drawing up a preliminary order under section 145 (1), code of criminal procedure on the date on which he decided that the case was one properly falling under s, 145, code of criminal procedure. i do not understand what he means when he says it was 'impossible'. the importance of this is that the question of possession has to be decided with reference to the date of the preliminary order (see section 145 (4) criminal procedure code and if there is no preliminary order the one question which the magistrate has to decide cannot be decided. the learned magistrate has referred to the date of the 'cause of action' without explaining even what that date was. the learned advocate for the respondent contends that this was the date in september 1935.....
Judgment:
ORDER

Burn, J.

1. There was nothing to prevent the learned Sub-Divisional Magistrate from drawing up a preliminary order under Section 145 (1), Code of Criminal Procedure on the date on which he decided that the case was one properly falling under s, 145, Code of Criminal Procedure. I do not Understand what he means when he says it was 'impossible'. The importance of this is that the question of possession has to be decided with reference to the date of the preliminary order (See Section 145 (4) Criminal Procedure Code and if there is no preliminary order the one question which the Magistrate has to decide cannot be decided. The learned Magistrate has referred to the date of the 'cause of action' without explaining even what that date was. The learned Advocate for the respondent contends that this was the date in September 1935 when the learned Sub-Divisional Magistrate decided to 'convert' the case into one under s, 145, Criminal Procedure Code. This may be correct, but it is far from self-evident. The learned Public Prosecutor on the contrary contends that 'cause of action' must have arisen when the dispute likely to occasion a breach of the peace came into existence or was brought to notice. This is a much more probable explanation in my opinion. 'Cause of action,' in connection with these proceedings is in any case a very unsuitable expression. In civil proceedings it has a technical meaning and it should not be imported into criminal proceedings at least without a clear explanation of what the learned Magistrate thinks it means. The decisions of this Court so far tend to show that unless there is a preliminary order under Section 145 (1), Criminal Procedure Code, the Magistrate has no jurisdiction to pass any order under Section 145 (6), Criminal Procedure Code. These decisions I would say with all respect are correct for the reason which I have already indicated. The conduct of the petitioners in allowing the learned Magistrate to go on without objection is no doubt reprehensible but it cannot validate an order, which is without jurisdiction. The order of the learned Sub-Divisional Magistrate is therefore set aside.


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