HAMEED KHAN Vs. STATE

JUDGEMENT

(1.) This is a reference made by the learned Additional Sessions Judge of Lucknow. Originally it came up for hearing before a learned single Judge of this Court, He was of opinion that this reference should be placed before a Divisional Bench as the authorities were not all uniform. This has therefore, come up before us,

(2.) It appears that one Ishtiaq had absconded while he was on bail and proceedings under Sections 87 and 88, Criminal P. C. were ordered to be taken against him. Some moveable property was attached. One Hamid Khan made a claim before the Magistrate who was seized of the case that the property which had been attached belonged to him and his family and that Ishtiaq was not the owner of the property. The learned Magistrate who heard the claim, however, rejected it. The applicant then went up in revision to the Sessions Judge. The learned Sessions Judge was of the opinion that there was no evidence in support of the contention .that the property belonged to Ishtiaq while there was evidence in support of the claim made by Hamid. Under these circumstances the claim, of Hamid should have been allowed and the learned Magistrate had erred in rejecting his objection. On these grounds he referred the case to the High Court.

(3.) The learned Government Advocate has placed all the relevant case law on the point in issue before us. At one time it was held in some oases that an order made under Sections 87 and 88, Criminal P. C. could not be the subject of revision under Section 435, Criminal P.C. The first case cited before us is Queen Empress v. Kanappa Goundan, ILR 20 Mad 88 (A). The facts of this reported case were very much similar to the facts of the present case. An attachment had been made under Section 88 Criminal P. C. and the claim made by a certain other person was rejected. The unsuccessful claimant then went up in revision and a reference made to the High Court. In a very short judgment the learned Judges rejected the reference. The Divisional Bench which decided the case, however, came to the conclusion, firstly, that the Magistrate had given good reasons in support of his order and secondly that they were disposed to agree with the view taken by some of the other High Courts of Section 88 of the Code of Criminal Procedure. The controversy, it appears, before the Court was whether proceedings under Section 88 could be deemed to be proceedings of a Judicial nature which could be the subject of revision under Section 435, Criminal P. C. Before we dismiss the other cases it may be useful to indicate the changes which have since been made in the Code of criminal Procedure.