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Sheobalak Rai and ors. Vs. Bhagwat Panday and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.486
AppellantSheobalak Rai and ors.
RespondentBhagwat Panday and ors.
Cases ReferredBejoy Madhub Chowdhury v. Chandra Nath Chukerbutty
Excerpt:
criminal procedure code (act v of 1898), section 146 - attachment of disputed property--order without taking evidence wholly without jurisdiction. - .....it is only if the magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was in such possession, that he can attach the property, and it is perfectly clear that he cannot say he is unable to satisfy himself if he has never made the slightest effort to do so. he had only to send a kanungo out to the spot and take his report, or send for the headman of the village and ask him what the facts were; he would have then fully armed himself with jurisdiction, but he did nothing of the kind, and it can be clearly distinguished from bejoy madhub chowdhury v. chandra nath chukerbutty 6 ind. cas. 40 : 14 c.w.n. 80 : 11 cr.l.j. 27, where the magistrate said he was unable to satisfy himself. he does not even say that he has had.....
Judgment:

1. This was a Rule calling on the District Magistrate of Shahabad to show cause why the order under Section 146 should not be set aside as wholly without jurisdiction, inasmuch as the Magistrate had not taken any evidence as was necessary in order to enable him to determine, if possible, who was in possession.

2. Now, as regards the duties of the Magistrate under Section 145, it was laid down, in the case of Sheikh Mansar Ali v. Mati Ullah 12 C.W.N. 896 : 8 Cr.L.J. 202, that the Magistrate in the absence of information might have himself held a local inquiry under Section 148 or in various ways might have informed himself as to the facts of the case; as he had not done so, it was held that he declined jurisdiction and the order complained of was set aside. This ruling has been followed by this Court in the experience of one of us who has been sitting upon this Bench for the greater part of two years, and has never, as far as we know, been differed from. There is a ruling in the case of Bejoy Madhub Chowdhury v. Chandra Nath Chuckerbutty 6 Ind. Cas. 40 : 14 C.W.N. 80 : 11 Cr.L.J. 27, in which the learned Judges profess to distinguish the ruling in Sheikh Mansar Ali v. Mati Ullah 12 C.W.N. 896 : 8 Cr.L.J. 202, on the ground that the Judges set aside the order in that cage because the Magistrate did not give sufficient time for regular proceedings to be followed. But as we have just pointed out, that was only one ground and a minor ground for setting aside the order. The main ground was the ground we have just now cited and that ground appears to us to be an obviously good ground, for the law says that it is only if the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was in such possession, that he can attach the property, and it is perfectly clear that he cannot say he is unable to satisfy himself if he has never made the slightest effort to do so. He had only to send a Kanungo out to the spot and take his report, or send for the headman of the village and ask him what the facts were; he would have then fully armed himself with jurisdiction, but he did nothing of the kind, and it can be clearly distinguished from Bejoy Madhub Chowdhury v. Chandra Nath Chukerbutty 6 Ind. Cas. 40 : 14 C.W.N. 80 : 11 Cr.L.J. 27, where the Magistrate said he was unable to satisfy himself. He does not even say that he has had the slightest difficulty. His order is as follows,--No evidence produced by either side; lands attached under Section 146.' Whatever view, therefore, be taken of the rulings, that order is clearly incompetent and without jurisdiction.

3. The order must be set aside and the lands released from attachment.


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