Shaikh Bahadur And Others v. Shaikh Eradutulla Mallik Opposite Party.

Doss, J.:— Two questions have been referred to us for decision in this rule, viz., (i) whether the expression “Court” in sec. 476, Cr. P.C, means merely the Judge before whom the alleged offence has been committed or to whose notice the commission of the alleged offence has been brought in the course of a judicial proceeding?

(2) Whether an execution proceeding is a judicial proceeding within the meaning of sec. 476, Criminal Procedure Code?

Upon a careful consideration of the cases mentioned in the order of reference as also those cited at the bar and upon an examination of the language of sec. 476, Criminal Procedure Code, we are of opinion that there is nothing in that section to warrant our withholding from the word “Court” its natural meaning with the sense of continuity this implies notwithstanding any change of officers.

We are of opinion that the first question ought to be answered in the negative.

The second question ought, in our opinion, to be answered in the affirmative. We entertain no doubt that an execution proceeding is a judicial proceeding; the definition in sec. 4, cl. (m) of the Code of 1898 is clearly not exhaustive. In this case the alleged offence was brought under the notice of the Court in the course of such judicial proceeding and hence sec. 476 clearly came into play.

It follows therefore that Mr. B.K Mukeijee had jurisdiction to make the order of the 5th October 1909. At the same time we must express our disapproval of the undue protraction of the proceedings; action under this section should, as far as possible, be prompt and expeditious. The alleged offence was brought to the notice of the Court on the 3rd December 1908 and it was not until the 5th October 1909, that the Court passed its final order.

The rule is accordingly discharged. There will be no order as to costs.

N.G

Rule discharged.