SM DAKHAN Vs. MADHOLAL

JUDGEMENT

(1.) MADHOLAL filed a complaint under Section 145, Criminal P. C. , before the Sub-Divisional Magistrate, Beawar. He alleged that he was in possession of 'nohra' No. 676 situated in Diggi Chunpachan, Beawar, and that at 3. 30 p. m. on 1. 2. 1950, the date of the application, the two opposite parties entered the 'nohra' illegally and forcibly and were not leaving it despite requests and protests. The learned Magistrate forwarded the application for report to the Station Officer, Beawar. In they order he stated that the applicant told him that the opposite parties 'are breaking open the locks and damaging his property'. As directed, the Station Officer reported the next day and on the basis of that report the learned Magistrate took cognizance of the matter in the following words: The S. O. Beawar, after enquiring reports that there is likelihood of a breach of the peace. Accordingly, I am convinced that a dispute likely to cause a breach of the peace exists concerning house (nohra) No. 676 in Diggi Chuncpachan, Beawar. . . . Notices were issued and alter taking into consideration the evidence Sm. Dakhan vs. Madholal and Anr. (26. 05. 1953 -RAJHC) Page 2 of 5 (26. 05. 1953 -RAJHC) Page 2 of 5 led by the parties, the learned Sub-Divisional Magistrate by his order dated 25-6-1951 held that Madholal applicant was in possession of the disputed house prior to 1. 2. 1950 and 'declared him entitled to possession. The learned Sub-Divisional Magistrate further directed that Madholal be restored to possession and declared him entitled to such possession until eviction in due course of law.

(2.) AGAINST that order, a revision was filed before the Additional District Magistrate. The learned Additional District Magistrate has made a reference to this Court recommending that the order of the learned Sub-Divisional Magistrate be set aside. In the reference I have heard the learned Counsel for Sm. Dakhan, the learned coun-sel for Madholal and the learned Public Prosecutor who has opposed the reference. No one has appeared on behalf of Sm. Ladi.

(3.) THE first point pressed by the learned Counsel for Sm. Dakhan is that the order of the learned Magistrate passed under Section 145 (1) of the Code of Criminal Procedure is defective and, as such, the final order of the learned Magistrate is not entitled to be maintained. The learned Counsel argues that the learned Magistrate did not as required by Section 145 (1), Criminal P. C. state the grounds of his being satisfied as to the existence of a dispute likely to cause a breach of the peace. As mentioned above, the order merely states that the learned Magistrate was satisfied as to the existence of a dispute likely to occasion the breach of the peace, because the Station Officer, Beawar, after enquiring had reported to that effect. I have on this point been referred to - Mahomed Ishaqu v. Emperor AIR 1945 All 60 (A ). The learned Counsel for Madholal, on the other hand, has referred to -Shankar v. Rex , - Ambika Bakhsh Singh v. Bharosay and -Narain Singh v. Mt. Suraj Kishore Devi. I am of opinion that this is a mere irregularity which is curable under Section 537, Criminal P. C. if it has not occasioned a failure of justice. It is not denied that no objection was taken on this score when the proceedings were pending before the learned Magistrate. The learned Counsel for Sm. Dakhan has not pointed out how this irregularity had occasioned a failure of justice. I am, therefore, of opinion that the defect is not fatal.