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Ali Mahomed Khan Vs. Tarak Chandra Banerji - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in1Ind.Cas.336
AppellantAli Mahomed Khan
RespondentTarak Chandra Banerji
Excerpt:
criminal procedure code (act v of 1898), sections 4(k), 145 and 350 - proceeding under section 145--'enquiry'--transfer of magistrate--successor taking up case. - .....of possession.2. it appears that the case was at one time in the file of the deputy magistrate, babu lalit chandra guha, and was ultimately disposed of by moulvi ahmedulla. babu lalit chandra guha was transferred in the course of the case and the case was taken up by moulvi, ahmedulla and it is contended that that officer had no jurisdiction to dispose of it.3. section 350, cr. p.c., lays down that whenever any magistrate ceases to exercise jurisdiction in a part-heard case and is succeeded by another magistrate, who has and who exercises such jurisdiction, the magistrate so succeeding may deal with the case.4. it is argued that this section has no application, firstly, on the ground that proceedings under section 145 of the code are not enquiries; and, secondly, on the ground that in.....
Judgment:

1. This is a case under Section 145, Cr. P.C., in which the Magistrate has placed the first party in possession. The Petitioner obtained a rule from this Court on the Magistrate to show cause why this order should not be set aside, firstly, on the ground that the case had not been transferred to the file of the Magistrate who actually disposed of it; and, secondly, because in dealing with the case the Magistrate did not confine his attention to the question of possession.

2. It appears that the case was at one time in the file of the Deputy Magistrate, Babu Lalit Chandra Guha, and was ultimately disposed of by Moulvi Ahmedulla. Babu Lalit Chandra Guha was transferred in the course of the case and the case was taken up by Moulvi, Ahmedulla and it is contended that that officer had no jurisdiction to dispose of it.

3. Section 350, Cr. P.C., lays down that whenever any Magistrate ceases to exercise jurisdiction in a part-heard case and is succeeded by another Magistrate, who has and who exercises such jurisdiction, the Magistrate so succeeding may deal with the case.

4. It is argued that this section has no application, firstly, on the ground that proceedings under Section 145 of the Code are not enquiries; and, secondly, on the ground that in this particular case Babu Lalit Chandra Guha was not succeeded by Moulvi Ahmedulla.

5. In our opinion both these contentions fail. As regards the first point, enquiry is defined under Section 4 of the Code as including every enquiry other than a trial conducted under the Code by a Magistrate. Under Section 147 a Magistrate is authorized to enquire into the matter, to which that section applies, in the manner provided by Section 145; and this appears to us to indicate that proceedings under Section 145 are enquiries. It is clear also from Section 117, Cr. P.C., that proceedings relating to orders requiring persons to keep the peace are also enquiries. It has been argued by the learned Counsel for the Petitioner that an enquiry under the Code can only be an enquiry into an offence but these sections to which we have referred seem to indicate that its meaning is considerably wider and extends to enquiries into matters which are not offences.

6. As to the question whether Moulvi Ahmedulla succeeded Babu Lalit Chandra Guha, we think that it is only common sense to construe Section 350 with all reasonable liberality. When there is only one Deputy Magistrate at a station, if he is transferred and another comes in his place, it appears to us perfectly reasonable to regard the new Magistrate as his successor. To take any other view would require the Magistrate of a Sub-division who has but one assistant to recall the whole file of that assistant into his own hands whenever the assistant was changed. Whether there is more than one Deputy Magistrate at Serajgunge we have no means of knowing, though we may say that it is not usual in a Sub-division where there is a Sub-divisional Magistrate, that there should be more than one Additional Deputy Magistrate of first class powers. Now in this case we find that Babu Lalit Chandra Guha referred to Moulvi Ahmedulla as his successor and Moulvi Ahmedulla referred to Babu Lalit Chandra Guha as his predecessor. Apparently when Lalit Babu was transferred, a day or two elapsed before Moulvi Ahmedulla arrived, and the Sub-divisional Magistrate on that day recorded an order to the effect that as the new Deputy Magistrate had not joined, the case should be put up on the following day. It appears from a perusal of his order that the Sub-divisional Magistrate did not regard the case as being on his own file and merely passed orders to keep the proceedings alive until the duly authorized Magistrate arrived. So far as we can gather from this case, Moulvi Ahmedulla must be regarded as the successor of Lalit Babu, and in that case Section 350 cures any defect in the former officer's jurisdiction.

7. With regard to the second ground of the rule, it appears that the Deputy Magistrate, although he went into several matters with which perhaps it was not absolutely necessary for him to deal, yet by no means lost sight of the question of possession. He refers to a good deal of evidence on the question of possession amongst which we notice decrees under Section 9 of the Specific Relief Act, obtained by the tenants of the first party which are said to have been duly executed. Nor does he overlook the question of actual possession immediately before the proceedings under Section 145, Cr. P.C. It appears that six months before these proceedings the Sub-divisional Magistrate placed the first party in possession. That order was subsequently set aside by this Court and then these proceedings were instituted. With respect to these matters the Deputy Magistrate says: 'I now turn to Mr. Craven's judgment again. He found possession with the first party on the 12th January, 1907. He maintained them in possession and that possession was not disturbed by the reversal of his order in the High Court. A few months later the present proceedings were drawn and the disputed chur was attached. Hence the state of things that existed at the time of Mr. Craven's visit continued till the date of the present proceedings, and there is no doubt that possession is with the first party.' This shows that the Deputy Magistrate's attention was directed to the question of the possession at the important time, that is to say, immediately before these proceedings were instituted. It has been argued on behalf of the Petitioner that what the Deputy Magistrate meant was that although Mr. Craven's order was set aside by this Court yet the right to possession continued, but we do not think that this is what the Deputy Magistrate intended. It appears to us that the only possible meaning of the remarks which we have quoted is that although the High Court set aside Mr. Craven's order awarding possession to the first party, yet still the actual possession remained with the first party and was not disturbed by the High Court's order. The Deputy Magistrate must have known perfectly well that the legal effect of Mr. Craven's order was entirely done away with by the order of this Court, and, therefore, when he says, possession was not disturbed,' we must assume that he means the actual possession and not the legal right to possession.

8. On these findings the Deputy Magistrate was in our opinion perfectly correct in disposing of the case under Section 145, Cr. P.C., in favour of the party whom he believed to be in possession at the time the proceedings were instituted.

9. The rule is accordingly discharged.


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