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Rajasthan High Court
Wanchoo C.J. & Modi, J.
Durjan Singh - Appellant
Versus
The State - Respondents
S.B. Cr.Revision No. 214 of 1952 (referred to D.B.)
Decided On : April 27, 1954
A mere omission on the part of Magistrate to pass a preliminary order under sec. 145 (1) Cr.P.C., or his failure to record the grounds for his being satisfied as to the existence of a dispute within the meaning of that section, and as to the likelihood of a breach of the peace are irregularities of procedure and must be judged by the test of prejudice under sec. 537 Cr. P. C. (Para 15)
A Magistrates jurisdiction or lack of it under sec. 145 Cr.P.C. arises not from the presence or absence of a formal order under sec. 145 (1) or again from a statement of his grounds as to his satisfaction of a likelihood of a breach of peace, or his failure to record such grounds, but the Magistrate really acquires jurisdiction from certain basic conditions laid down in sec. 145 viz., (1) that there exists a dispute concerning any land or water or boundaries thereof within the local limits of his jurisdiction and (2) that he is satisfied from some information whether it be a police report or any other information, and the Code does not limit the kind of information upon which a Magistrate may act, that such dispute is likely to cause a breach of the peace. As soon as these conditions are fulfilled, the Magistrate is at once seized of the dispute, and acquires jurisdiction to act under sec. 145. What he does thereafter, however, namely, that he makes an order in writing stating the grounds of his being so satisfied and requiring the parties concer-ned in such dispute to attend his court in person or by pleader within a stated time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, is all a matter of procedure, and if a Magistrate commits any error with respect to any of the matters last-mentioned, his errors are merely procedural and cannot be considered to have the effect of depriving him of jurisdiction which he undoubtedly possessed at the commencement of the proceedings. This of course assumes that the basic conditions are satisfied; for if those conditions are not satisfied, the Magistrate cannot arrogate jurisdiction to himself by merely complying with the procedural formality. (Para 12)
Errors of procedure as such are of varying degrees and they may sometimes have the effect of vitiating conclusions of law or fact. But whether they are susceptible to such an effect must depend on the facts and circumstances of each case. Thus ¦where by reason of a failure to draw up a preliminary order under sub-sec. (I) in a proceeding under sec. 145 Cr.P.C. the parties remain under a mis-apprehension as to the subject-matter of dispute or as to its nature and extent, or are prevented from leading relevant evidence, such an error may result in prejudice to one or both of the parties and may have the effect of vitiating the proceedings. But where the parties fully know their respective cases and have fought the dispute out without raising any objection at the appropriate opportunity and then seek to avoid the adverse final result on account of mere procedural irregularities, then such a proceeding will not for such reason be invalidated. (Para 12)
It is, however, highly desirable that the magistracy should avoid slipshod or perfunctory procedure in dealing with cases under sec. 145 Cr.P. C. and should carefully comply with its provisions, and invariably record a preliminary order strictly complying with the directions contained therein, so that the object underlying this section is properly fulfilled and not defeated. (Para 16)
"Whether the omission on the part of a Magistrate to pass a preliminary order under sec. 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 sec. 537 Cr.P.C.?"
2. The facts out of which the reference has arisen are these. On the 6th November, 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 Brijrajpura, and that there was an imminent danger of a breach of the peace, and it was prayed that action be taken under sec. 107 Cr.P.C. On the 15th November, 1951, the learned Magistrate directed notices to be issued to the parties complained against under sec. 107 Cr.P.C. On the 23rd November the Sub-Divisional Magistrate directed separate notices to be issued against the same parties under sec. 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 their written statements as regards their respective claims to possession of the land in dispute. There was a further report on the 9th February, 1952, by one Hukma, who appears to be an actual tenant in cultivatory 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 petitioners before the learned single Judge that the Magistrate had failed to pass a preliminary order in accordance with the terms of sec. 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 Singh Judge was faced with a conflict of decisions of this Court on the point raised before him. He has referred to Ramchander vs. Bheron Bux (1) (1951 RLW. 504.) and Mohan Singh vs. Kishenlal (2) ((1952 RLW, 236.)), and also to Narotam vs. Kamlabai(3) (1951 RLW, 55.) and Udami vs. The State(4) (1952 RLW, 286.), and the latter two cases, according to the learned Judge, are distinguishable on their peculiar facts. The view taken in Ramchanders case (1) is in effect that the omission to record a preliminary order under sec. 145(1) is fatal and stands in conflict with the decision taken in Mohan Singhs case(2) (1952 RLW, 236.) where such an omission has been held, in the absence of prejudice, to be curable under sec. 537 Cr.C.P. It is this conflict which had led to the present reference.
4. It may be pointed out atonce that the question that has been referred to us has
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