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Abdool Rackman Mia Vs. Safar Ali - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.262
AppellantAbdool Rackman Mia
RespondentSafar Ali
Excerpt:
criminal procedure code (act v of 1893), sections 133, 145 and 147 - proceedings entirely different--order under section 147 on proceeding under section 133, without jurisdiction. - 1. this was a rule calling upon the deputy commissioner of cachar and on the opposite party to show cause why the order under section 147 should not be set aside as being without jurisdiction inasmuch as it was passed on proceedings under section 133, criminal procedure code, without any action in accordance with section 1.0.2. the only explanation furnished by the magistrate who heard the case is that he did not take evidence because in his opinion under section 147, criminal procedure code, the taking of evidence is unnecessary.3. we must say that we are surprised that the deputy commissioner has forwarded this explanation without any comment. we must notice, firstly, that it has nothing whatever to do with the ground on which the rule was issued and, secondly, that it displays an.....
Judgment:

1. This was a Rule calling upon the Deputy Commissioner of Cachar and on the opposite party to show cause why the order under Section 147 should not be set aside as being without jurisdiction inasmuch as it was passed on proceedings under Section 133, Criminal Procedure Code, without any action in accordance with Section 1.0.

2. The only explanation furnished by the Magistrate who heard the case is that he did not take evidence because in his opinion under Section 147, Criminal Procedure Code, the taking of evidence is unnecessary.

3. We must say that we are surprised that the Deputy Commissioner has forwarded this explanation without any comment. We must notice, firstly, that it has nothing whatever to do with the ground on which the rule was issued and, secondly, that it displays an entire ignorance of the law and the rulings of this Court. We must say we should have expected the Deputy Commissioner to see that his subordinates did not send such an explanation to this Court without himself commenting upon it and expressing to us his views on the matter in question.

4. It is obvious that when proceedings are taken under Section 133, no order can be passed under Section 117. Section 147 clearly says that the procedure under that section shall be as under Section 145, which includes the filing of written statements, taking of evidence and, if necessary, local investigation. Proceedings under Section 133 are under an entirely different Chapter of the Code; they are made for an entirely different purpose and they have nothing whatever to do with proceedings under Chapter XII.

5. The order, therefore, is wholly without jurisdiction. The Rule must be made absolute and the order set aside.


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