The omission on the part of a Magistrate to pass a preliminary order under Section 145 (1), Cr. P. C. stating the grounds of his being satisfied about the existence of dispute and the likelihood of the breach of peace is an irregularity which would vitiate all the subsequent proceedings or is a mere irregularity curable under Section 537, Cr. P. C.

MODI, J.

( 1 ) THIS is a reference by a learned Single Judge of this Court and relates to the interpretation of Section 145, Cr. P. C. The question referred to this Bench is in the following terms:

"whether the omission on the part of a Magistrate to pass a preliminary order under Section 145 (1), Cr. P. C. stating the grounds of his being satisfied about the existence of dispute and the likelihood of the breach of peace is an illegality which would vitiate all the subsequent proceedings or is a mere irregularity curable under Section 537, Cr. P. C?"

( 2 ) THE facts out of which the reference has arisen are these. On 6-11-1951, a report was presented on behalf of the police station Begu, in the court of the Sub-Divisional Magistrate, Begu, that there was a serious dispute between Durjansingh and others, who are petitioners in this Court, and Moda and others who are opposite parties, relating to a well called Rawla and the agricultural land attached thereto, situate in village Brijraj-pura, and that there was an imminent danger of a breach of the peace, and it was prayed that action be taken under Section 107, Cr. P. C. On 15-11-1951, the learned Magistrate directed notices to be issued to the parties complained against under Section 107, Cr. P. C. On the 23rd November the Sub-Divisional Magistrate directed separate notices to be issued against the same parties under Section 145, Cr. P. C. In these notices, a reference to the report of the Begu police was made and it was stated that there was an apprehension of a breach of the peace, and the Magistrate further called upon both parties to file written statements as regards their respective claims to possession of the land in dispute. There was a further report on 9-2-1952, by one Hukma, who appears to be an actual tenant in cultivator possession of the land in dispute, wherein he prayed for the attachment of the standing crop in view of the bad blood existing between the parties above named, and the learned Magistrate ordered attachment thereof. Eventually, as a result of the inquiry made into the matter, the Sub-Divisional magistrate declared that Moda and his party were in possession of the well and the land appurtenant thereto at the relevant time and directed that they be put in possession and enjoined Durjansingh and others to refrain from disturbing such possession until the eviction of Moda and others by a competent court. Durjansingh and others went in revision from the above order to the learned sessions Judge, Pratapgarh, who upheld it. This led to a revision to this Court.

( 3 ) IT was contended on behalf of the petitioners before the learned single Judge that the Magistrate had failed to pass a preliminary order in accordance with the terms of Section 145 (1), Cr. . P C. and that he had not stated anywhere that he was satisfied that a dispute likely to cause a breach of the peace existed between the parties, much less that he had given his reasons relating thereto and, therefore, all the subsequent proceedings taken in the court of the Magistrate were illegal and were fit to be quashed. The learned Single Judge was faced with a conflict of decisions of this Court on the point raised before him. He has referred to-- ramchandra v. Bhairon Buksh, AIR 1954 Raj 51 (A) and --mohansingh v. Kishan-lal, 1952 RLW 236 (B), and also to --narotam v. Kamlabai, 1951 R LW 55 (C) and -- udami v. State, 1952 R LW 286 CD), and the latter two cases, according to the learned Judge, are distinguishable on their peculiar facts. The view taken in -- ramchandras case (A), is in effect that the omission to record a preliminary order under Section 145 (1) is fatal and stands in conflict with the decision taken in mohansinghs case (B) where such an omission has been held, in the absence of prejudice, to be curable under Section 537, Cr. P. C. It is this conflict which has led to the present reference.

( 4 ) IT may be pointed out at once that the question that has been referred to us h