BARMHA SINGH Vs. EMPEROR

JUDGEMENT

(1.) This is an application in revision against an order passed by a Magistrate under Section 145, Criminal P.C. The application raises the question whether the Magistrate's omission to record in his order under Section 145(1) the grounds of his being satisfied that a dispute likely to cause a breach of the peace exists concerning some immovable property vitiates the subsequent proceedings. One Madho Singh made an application under Section 145, Criminal P.C. alleging that there was a dispute between him and the persons of the opposite party regarding the possession of a certain field, and that there was a likelihood of a breach of the peace on account of the interference by the opposite party. He stated that the land was his sir and he had begun cutting his crop when the opposite party came with lathis and drove him away by force and threatened to kill him if he came near the field again. The Magistrate called for a police report and also took evidence under Section 202, Criminal P.C. On 13 March, the application was dismissed because Madho Singh failed to deposit the necessary process fees. On 17 March Madho Singh renewed his application. His statement was recorded and it was ordered that the application be put up next day with the previous papers. Next day the Magistrate perused the previous papers and the police report and then passed an order in the following words: Summon the parties to file written statements, and the property attached will not be released is not yet so done.

(2.) It seems that the Magistrate had authorized the police officer to attach the property if necessary. Undoubtedly this order was not in the form required by Section 145(1). The Magistrate did not state the grounds of his being satisfied that there was a likelihood of a breach of the peace concerning the disputed plot of land. It is obvious that he was so satisfied by the police report and by the statements of the complainant and his witnesses, but he omitted to state in his order the grounds of his being so satisfied as he should have done, in conformity with Section 145(1). It has been argued for the applicants that even if no prejudice-was caused to them, and even.if no failure of justice has been occasioned, the omission in the Magistrate's order had the effect of depriving him of jurisdiction to proceed further, and that the subsequent order passed under Section 145(6) must be held to have been passed without jurisdiction. Several rulings have been cited in support of this view : Zehari Lal V/s. Chhujju [1907] 2 A.L.J. 272, Dan Pershad V/s. Ganesh [1913] 14 Cr.L.J. 495, Nathu Ram V/s. Emperor [1917] 18 Cr.L.J. 557 and Banka Singh V/s. Gokul . These rulings do no doubt support the applicant's contention that the Magistrate had no jurisdiction to pass an order under a subsequent subsection of Section 145 without having made a preliminary order under Sub-section (1) in conformity with the requirements of that sub-section.

(3.) For the Crown, we have been referred to a very recent case Madan Mohan Lal V/s. Sheoraj Kunwar , in which Boys, J,, expressly considered three of the Allahabad rulings to which we have referred and expressed the view that Section 145(1) is not mandatory except in this sense that the Court will set aside an order passed under the latter clauses of Section 145, if there is any reason to believe that the omission of an order, or the passing of an order not strictly in the terms of Section 145(1) led to some prejudice to one or other of the parties. It would be quite unjustifiable and unreasonable to set aside lengthy proceedings under Section 145 when the facts indicate that the parties could not conceivably have been prejudiced by the absence of a formal order, where it is manifest that they knew well all the facts and contested the matter with the advantage of the knowledge of the whole of the facts. The omission to draw up an order under Section 145(1) has nothing to do with the question of jurisdiction.