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Anu Sheikh Vs. Jitu Sheikh and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in7Ind.Cas.54
AppellantAnu Sheikh
RespondentJitu Sheikh and anr.
Excerpt:
criminal procedure code (act v of 1898), sections 145, 350 - case under section 145--enquiry--evidence partly recorded by one magistrate and partly by another. - .....heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may re-summon the witnesses and recommence the enquiry or trial.' now, it is argued that that section does not apply. but that section is in its terms wide enough to cover every trial or enquiry under the code of criminal procedure and the proceeding under section 145 is we think an enquiry, because in it the magistrate's duty is to enquire who is in possession of the disputed area. we think, therefore, that the terms of.....
Judgment:

1. The first point taken is that this proceeding having begun before one Magistrate and continued and ended by another is without jurisdiction because the second Magistrate had no jurisdiction to make the order. But Section 350 provides 'whenever any Magistrate, after having heard and recorded the whole or any part of the evidence in an enquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another Magistrate who has and who exercises such jurisdiction, the Magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly recorded by himself or he may re-summon the witnesses and recommence the enquiry or trial.' Now, it is argued that that Section does not apply. But that Section is in its terms wide enough to cover every trial or enquiry under the Code of Criminal Procedure and the proceeding under Section 145 is we think an enquiry, because in it the Magistrate's duty is to enquire who is in possession of the disputed area. We think, therefore, that the terms of Section 350 apply wherever a Magistrate has ceased to exercise jurisdiction therein. Now, in the present case the Magistrate who began ceased to exercise jurisdiction because he was transferred, that is to say, his office qua the exercise of jurisdiction in this particular case was vacated and the case was transferred to the file of another Magistrate who then became the successor of the Magistrate who had vacated the office in the sense that he exercised the jurisdiction over the case which had been exercised by the Magistrate who had begun the case. We think, therefore, that the second Magistrate came within Section 350, Criminal Procedure Code.

2. Then with regard to the other point, the Magistrate has found that the other party has been in possession for two months and that brings him precisely within the proviso of Clause 4 of Section 145, Criminal Procedure Code. We cannot, therefore, say that the order was made without jurisdiction. For these reasons, we think the order must stand as being made with jurisdiction. This application is accordingly refused.


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