SUVA MONDAL Vs. AMALABALA

JUDGEMENT

(1.) The present opposite party no. 1, Amala Bala, made an application under section 145, Cr. P.C. against one Sudhir Mondal, since deceased, who was the predecessor of the present petitioners, before a competent Executive Magistrate alleging, inter alia, that she was the owner in possession of a certain plot of land which formerly belonged to her father Harihar and the learned Magistrate directed the Officer-in-Charge of the concerned police station to make an enquiry and report. Subsequently on perusal of the report, the learned Magistrate drew up a proceeding under section 145, Cr. P.C. and directed the parties to put in written statement in support of their respective claim. Ultimately on the 25th March, 1988 the learned Magistrate found that Amala Bala was in actual possession of the disputed land when the proceeding was drawn up and also directed the local Junior Land Reforms Officer, who was appointed a Receiver in the mean time, to deliver possession of the disputed land to her. It is this order which is sought to be revised mainly on the ground that the learned Magistrate had committed a gross illegality in proceeding under section 145, Cr. P.C. as there was nothing before him to satisfy that a dispute likely to cause a breach of the peace existed.

(2.) In opposing the application the learned Advocate for the said opposite party has made two-fold submissions. In the first place it was contended that even if the learned Magistrate did not strictly comply with the provision of section 145, Code of Criminal Procedure it was only a curable irregularity as no prejudice was caused to the petitioners and secondly in any case the final order passed by the learned Magistrate cannot be struck down as the petitioners did not challenge the initial order drawing up the proceeding.

(3.) The l earned Advocate for the petitioners has pointed out that in the preliminary order passed by the learned Magistrate on the 3rd May 1984, all that was stated was that the police report revealed that Sudhir Mondal, the predecessor-in-interest of the present petitioners wanted to stay forcibly on the land of Amala Bala and as a shanty was made by him he was liable to be evicted. In the same order the learned Magistrate also noted that said Sudhir Mondal undertook in writing to vacate the land within a specified date but he did not do so. It was, therefore, argued on behalf of the petitioners that the learned Magistrate made this order in disregard of the mandate in section 145, Cr.P.C. under which he was required to state the grounds of his satisfaction regarding the existence of a dispute likely to cause a breach of the peace. There is no doubt that the learned Magistrate made no such record and, therefore, it is to be decided whether such omission will have the effect of vitiating the proceeding making it liable to be quashed. The learned advocate for the said opposite party has tried to rely upon the Full Bench decision of Allahabad High Court in Kapoor Chand & Another vs. Suraj Prasad, AIR 1933 All. 264. In that case it was held that the jurisdiction of a Magistrate to take action under section 145, Code of Criminal Procedure arises from the fact that he has received certain information and that he was satisfied as to the truth of that information and if he had jurisdiction, he was not deprived of it merely because the procedure followed by him was defective or erroneous. The Full Bench therefore, rejected the argument that omission on the part of the Magistrate to record the fact that he was satisfied that a dispute likely to cause a breach of the peace existed and further omission to record the grounds on which he was so satisfied was an illegality and took the view by the test of prejudice that such omission was merely an irregularity which was cured by the provision of section 537, Code of Criminal Procedure, 1898. On the basis of this decision the learned Advocate for the said opposite party put forth the argument that in this case too the omission of the learned Magistrate referred to by the petitioners was merely an irregularity which was cured by section 465, Code of Criminal Procedure, 1973 as there was no failure of justice. This contention cannot, however, he accepted in the facts and circumstances of the present case. It will appear that in Kapoor Chand's case (supra) an application was made under section 145, Cr. P.C. alleging that the opposite parties were trying to interfere with the possession of a certain property and that there was likelihood of a breach of the peace. It further appears that a police enquiry was ordered by the learned Magistrate who on receipt of the police report recorded that there appeared to be some basis for the com- plaint. Therefore there is no doubt that in that case there was an allegation of the existence of a dispute likely to cause a breach of the peace which was also supported by the result of a police enquiry. On the other hand, in the case before us even the application under section 145, Cr.P.C. made by Amala Bala did not contain any allegation whatsoever about the existence of a dispute likely to cause a breach of the peace and it does not appear that there was any police report or any other information before the learned Magistrate to that effect. Thus there was absolutely nothing before the learned Magistrate to show the existence of such a dispute which clearly distinguishes this case from the one cited by the learned advocate for the opposite parties. The correct legal position is that if there is material before the learned Magistrate to show that a dispute likely to cause a breach of the peace existed and after applying his mind thereto if he decided to proceed under section 145, Cr. P. C., then an omission to record the grounds of his satisfaction may be regarded as a mere irregularity not affecting his jurisdiction and consequently if it did not cause any prejudice to the party concerned the proceeding would not be invalid. Reference may be made in this connection to another decision of the same High Court, Ram Peary & Others vs. Dankua, AIR 1949 All. 402 which also considered and relied upon the Full Bench decision referred to earlier. In Ram Peary's case, it has been clearly laid down that if there was material before a learned Magistrate upon which he felt satisfied that there was a likelihood of a breach of the peace, an omission to record a formal order as required by section 145(1), Code of Criminal Procedure may be regarded as a curable irregularity but if there was nothing on the record to indicate that the learned Magistrate had any information before him about the likelihood of a breach of the peace then the proceeding taken by him would be wholly without jurisdiction.