NATHUBHAI BRIJLAL Vs. EMPEROR

JUDGEMENT

(1.) The point which arises in this case is in my opinion a very simple one, and all those arguments which have been addressed to us by Mr. Shah in support of his application vanish, if, having regard to the provisions of Section 145 of the Criminal Procedure Code, we bear in mind what may be called the equities of the case. Section 145 requires a Magistrate, when he has found that a dispute likely to cause a breach of the peace exists, to pass an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Clause 3 of Section 145 further requires that a copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct. And not merely that, but the Magistrate is also required to see that at least one copy is published by being affixed to some conspicuous place at or near the subject of dispute. These provisions make it quite clear that the parties whom the Magistrate has to deal with are not merely the actual parties to, but all persons who may be concerned in the dispute, the object being to prevent a breach of the peace. Therefore, it is not the actual parties but all parties who may have notice of the proceedings that are bound by the order.

(2.) In the present case, it has been found by the learned Magistrate that the present petitioner was actually present during the time the proceedings initiated by Mancharam were going on in his Court. That shows that he was aware of those proceedings. His present claim that he is entitled to possession, therefore, must fail. He was a party concerned in the dispute, and having notice thereof if he re mained quiescent then he cannot say that the proceedings were without jurisdiction, so far as he was concerned. Upon that ground the rule must be discharged. Heaton, J.

(3.) I quite agree that the rule must be discharged. If the Magistrate had jurisdiction his proceedings could only be regarded as coming under Chapter XII of the Code, and in that case I think our revisional powers are excluded by Clause 3 of Section 435. If the Magistrate had no jurisdiction to deal with the question, I think he was quite right in rejecting the application. In either event no interference is called for from us.