Authored By : Richard Harington, William Teunon

Richard Harington and William Teunon, JJ.

1. The first point taken is that this proceeding, havingbegun before one Magistrate and continued and ended by another, is withoutjurisdiction, because the "second Magistrate had no jurisdiction to makethe order. But Section 350 of the Code of Criminal Procedure provides:"whenever any Magistrate, after having heard and recorded the whole or anypart of the evidence in an inquiry or a trial, ceases to exercise jurisdictiontherein, and is succeeded by another Magistrate who has, and who exercises,such jurisdiction, the Magistrate so succeeding may act on the evidence sorecorded by "his predecessor, or partly recorded by his predecessor andpartly recorded by himself; or he may re-summon the witnesses and re-commencethe enquiry or trial." Now, it is argued that section does not apply. Butthat section is in its terms wide enough to cover every trial or inquiry underthe Code of Criminal Procedure, and the proceeding under Section 145 is, wethink, an inquiry, because in it the Magistrates duty is to enquire who is inpossession of the disputed area. We think, therefore, that the terms of Section350 apply wherever a Magistrate has ceased to exercise jurisdiction therein.Now, in the present case the Magistrate who began ceased to exercise jurisdictionbecause he was transferred, that is to say his office, qua the exercise ofjurisdiction in this particular case, was vacated and the case was transferredto the file of another Magistrate, who then became the successor of theMagistrate who had vacated the office, in the sense that he exercised thejurisdiction over the case which had been exercised by the Magistrate who hadbegun the case. We think, therefore, that the second Magistrate came withinSection 350 of the Criminal Procedure Code.

2. Then, with regard to the other point, the Magistrate hasfound that the other party has been in possession for two months, and thatbrings him precisely within the proviso of Clause (4) of Section 145 of theCriminal Procedure Code. We cannot, therefore, say that the order was madewithout jurisdiction. For these reasons, the order must stand. This applicationis accordingly refused.

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Anu Sheikh vs.Emperor (16.05.1910 - CALHC)