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Daulat Ali Molla Vs. Hedail Molla and ors. - Court Judgment

LegalCrystal Citation
Subject Criminal
CourtKolkata
Decided On
Reported inAIR1928Cal703,117Ind.Cas.600
AppellantDaulat Ali Molla
RespondentHedail Molla and ors.
Excerpt:
- .....order has the effect of debarring the lawful owner from enjoying the property until such time as he recovers a decree in the civil court and of putting him in the embarrassing position of being the plaintiff in the civil court. we think, therefore, that on this ground the rule must be made absolute and the order set aside. it is always open to the magistrate in the case of a further apprehension of a breach of the peace arising to take such steps as he may think necessary to prevent it.
Judgment:

1. This rule was granted to show cause why the order of the Magistrate attaching certain property under Section 146, Criminal P.C., should not be vacated on the ground that the case was called on for hearing before 11 a.m. which was the time fixed by the Court for its sitting and, therefore, the parties were unable to attend the Court. The learned Additional District Magistrate in his ex-planation says:

2. There is nothing on the record to show that 'the case was called on for hearing before 11 a.m. The Court generally sits at 11 a. m. or after but not before 11 a.m. It was also not stated before roe that the casa was taken up by the trying Magistrate before 11 a.m. Prima facie, therefore, this ground has little weight. But it appears to us, on a perusal of the record, that the order complained of cannot be maintained on another ground. Section 146, Criminal P.C., presupposes an enquiry by the Magistrate on the evidence recorded and the object of Section 146 is to give the Magistrate jurisdiction to attach property if, upon the evidence so recorded, he is unable to come to a finding as to who was in possession on the date on which the order under Section 145 of the Code was drawn up. In this case apparently there was no evidence of any kind. Therefore we cannot but hold that the order attaching the property under Section 146, Criminal P.C. was without jurisdiction. The order has the effect of debarring the lawful owner from enjoying the property until such time as he recovers a decree in the civil Court and of putting him in the embarrassing position of being the plaintiff in the civil Court. We think, therefore, that on this ground the rule must be made absolute and the order set aside. It is always open to the Magistrate in the case of a further apprehension of a breach of the peace arising to take such steps as he may think necessary to prevent it.


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