HARBIR SINGH Vs. THE STATE AND ANOTHER

JUDGEMENT

(1.) THIS application which purports to be under Section 561 -A of the Criminal Procedure Code, and Section 226 of the Constitution of India, has arisen under the following circumstances.

(2.) ON the strength of a report made against the petitioner by the Custodian of the Muslim Evacuee Property, a case under Section 409, I.P.C., was registered by the Police. After the case had been investigated the Police came to the conclusion that no offence had been made out against the petitioner and recommended that the case be cancelled. On 23 -6 -1950 the Magistrate, before whom the report was placed, ordered that the person (Brij Lal Palta) at whose instance the Custodian had started proceedings be summoned. Brij Lal Palta appeared on 10 -7 -1950 and requested the Court to grant him opportunity to adduce evidence in support of his allegations. On 11 -8 -1950 the Magistrate recorded Brij Lal Palta's statement and then made an order sending for the record of a case. Three or four adjournments were given for this purpose. Inspite of the fact that no process was issued by the Magistrate to the petitioner, he appeared of his own accord in Court on 11 -8 -1950 and made an application which was rejected by the Magistrate. After that the case was adjourned from time to time and Brij Lal Palta was asked to produce his evidence. The application to this Court was made on 20 -11 -1950.

(3.) AFTER hearing the petitioners counsel and the learned Advocate General my opinion is that neither Article 226 of the Constitution of India nor Section 561 -A Criminal Procedure Code has any application and since, however, the matter has come before us and it appears to me that the proceedings are being taken by the Magistrate in his judicial capacity it is desirable that we should pronounce our opinion on the points raised before us and afford proper relief under Section 439, Criminal Procedure Code.