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Asfandyar Khan Vs. Irshad Khan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata
Decided On
Judge
Reported in5Ind.Cas.249
AppellantAsfandyar Khan
Respondentirshad Khan and anr.
Excerpt:
criminal procedure code (act v of 1898), sections 145, 146 - order of attachment, without written statement and evidence--jurisdiction of magistrate. - .....procedure code. while that case was going on, the magistrate ordered a proceeding to be commenced under section 145, criminal procedure code, abandoning that under section 144. on the proceeding coming on for adjudication the first party was absent sending an excuse that he was ill. the second party applied for an adjournment for reasons which did not commend themselves to the deputy magistrate. neither party had at that time filed written statements and they did not produce any evidence, but the magistrate proceeded to make the order before us, attaching the property under section 146, criminal procedure code.2. we do not say that it is beyond the jurisdiction of the magistrate to make the order under section 146 without written statements and without evidence; but as in this case he.....
Judgment:

1. We have in this case an order under Section 146, Criminal Procedure Code, and a rule has been granted to show cause why it should not be set aside as being made without jurisdiction. A proceeding was initiated under Section 141, Criminal Procedure Code. While that case was going on, the Magistrate ordered a proceeding to be commenced under Section 145, Criminal Procedure Code, abandoning that under Section 144. On the proceeding coming on for adjudication the first party was absent sending an excuse that he was ill. The second party applied for an adjournment for reasons which did not commend themselves to the Deputy Magistrate. Neither party had at that time filed written statements and they did not produce any evidence, but the Magistrate proceeded to make the order before us, attaching the property under Section 146, Criminal Procedure Code.

2. We do not say that it is beyond the jurisdiction of the Magistrate to make the order under Section 146 without written statements and without evidence; but as in this case he made no attempt to investigate the question in the light of evidence and of written statements, we consider that he has acted without jurisdiction.

3. The rule, therefore, is made absolute and the order is set aside.


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