1. This is a reference by the learned Sessions Judge of Hazaribagh recommending that an order dated 13th August 1949 made by a Magistrate exercising first class powers at Hazaribagh in a proceeding under Section 145 of the Cr PC, be set aside. By the order in question the learned Magistrate found the first party to the proceeding in possession of the lands in dispute. He declared the possession of the first party and forbade the members of the second party from interfering with that possession until evicted in due course of law.

2. I have heard Mr. T.K Prasad appearing for the members of the second party in support of the reference. Mr. Bajrang Sahay has been heard against the reference. Before I state the reasons which the learned Sessions Judge has given in support of his recommendation, I should state the facts relevant to the points now in issue. The facts are these. On 19th October 1948, two persons, Badri Mahton and Ramkumar Mahton, first party in the subsequent proceeding under Section 145 of the Cr PC, filed a petition regarding certain lands detailed in Sch. A, appended to the petition. They alleged that the lands were the royaiti lands of one Lalo Mahton who died issueless. On his death Mt. Sanichari, widow of Puna Mahton, who was the brother of Lalo Mahton, and Raghu minor son of Puna Mahton, deceased, came in possession of the lands. Badri Mahton and Ramkumar Mahton claimed that they had purchased the lands by a registered sale-deed, dated 15th June 1936, from Mt. Sanichari for self and acting as guardian of Raghu. They further alleged that certain persons, who subsequently were made members of the second party to the proceeding, claiming themselves to be agnates of Lalo Mahton, were likely to disturb their peaceful possession. They referred to certain acts which gave rise to an apprehension of a breach of the peace. This petition was sent to the local police for an enquiry and report. On 25th October 1948, the local Sub-Inspector of police submitted a report in which he stated that there was an immediate apprehension of a breach of the peace with regard to the lands and that actually the contending parties had gone to the lands on 23rd October 1948, and a breach of the peace was averted with difficulty. The Sub-Inspector of police mentioned the names of four persons including Badri Mahton and Ramkumar Mahton as members of the first party; and mentioned the names of thirteen parsons as members of the second party. Amongst the members of the second party, two names are important to remember. They are Barhan Mahton and Genda Mahton, who claimed that their grandfather and the grandfather of Lalo Mahton were brothers. They further claimed that they were the nearest gotias and had succeeded to the estate of Lalo Mahton, and were in possession of the disputed lands. On receipt of the police report, the learned Sub-divisional Magistrate drew up proceedings under Section 144 of the Cr PC against both parties and restrained both parties from going upon the lands. The parties showed cause against the order under S. 144 and on 8th December 1948, the learned Sub-divisional Magistrate heard the parties. On that date he passed the following order:

“Heard both parties. This case should be decided on evidence. Draw up proceedings under Section 145 of the Cr PC against both parties asking them to show cause, if any, by 23rd December 1948. The land is attached.”

On 23rd December 1943, and succeeding dates, the parties took time. Ultimately, both parties filed written statements, except some members of the second party to whom I shall presently make a reference, of their respective claims as regards the fact of actual possession of the lands in dispute. The case was then transferred to several Magistrates one after another and ultimately came to be dealt with by Mr. B. Ojha, a Magistrate exercising first class powers at Hazaribagh. He heard the evidence of both parties and the arguments of their lawyers. On 13th August 1919, he passed the order to which I have already made a reference.

3. Now I come to the reasons which the learned Sessions Judge has given for his recommendation. The reasons are three in number: (1) that the learned Sub-divisional Magistrate directing the initiation of a proceeding under 145, Code of Criminal Procedure on 8th December 1948, did not state that he was satisfied that there was a bona fide dispute with regard to the possession of immovable property, or that there was a likelihood of a breach of the peace: (2) that the learned Sub-divisional Magistrate did not draw up a preliminary order, as contemplated by sub-3. (1) of S. 145 and (3) that there was a-failure to comply with the provisions of sub-s. (3) of S. 145.

4. As to the first reason, it seems clear to me that on the materials, which the Sub-divisional Magistrate had before him on 8th December 1948, he was satisfied that there was an immediate apprehension of a breach of the peace, and the dispute which gave rise to that apprehension was one which could be more satisfactorily dealt with in a proceeding under Section 145 of the Cr PC. The learned Sub-divisional Magistrate had before him not merely the petition of Badri Mahton and Ramkumar Mahton but also the report of the local Sub-Inspector of Police, dated 25th October 1948. The mere failure to state the reasons why he was satisfied that there was an apprehension of a breach of the peace was nothing more than an irregularity, in view of the materials which the learned Sub-Divisional Magistrate had before him and the order which he passed on 8th December 1948, which I have quoted in extenso.

5. The second reason is more serious and, I must confess, has caused some difficulties to me. It appears that though the learned Sub-divisional Magistrate directed on 8th December 1948, that a proceeding under 8.145 be drawn up against both parties, no preliminary order, as contemplated by Section 145(1) of the Cr PC, was formally drawn up. The learned Magistrate has pointed out that there are some marginal office notes against the order of 8th December 1948, which seem to indicate that some notices, presumably under Section 145(1) of the Cr PC, were issued against the parties. On the materials in the record one cannot be certain however, that such notices were actually issued. In any view, it is clear that no preliminary order under S. 145(1) is on the record. Therefore, the question is whether, in the circumstances of this case, the absence of a preliminary order under Section 145(1) of the Cr PC vitiates the entire proceedings which followed. I may state here that the parties filed written statements; they gave evidence; their lawyers argued the case before the learned Magistrate; and no objection was ever raised as to the absence of a preliminary order under sub-s. (1) of Section 145 of the Cr PC. Mr. T.K Prasad appearing in support of the reference has very strenuously contended before me that the failure to draw up a preliminary order under sub-s. (1) of Section 145 of the Cr PC amounted to an illegality which vitiated the entire proceedings that followed. He relied particularly on two decisions, Mariasusai Udayan v. Muhammad Azzeezudden, A.I.R (23) 1936 Mad. 824 : (37 Cr. L.J 953) and Jamuna Prasad v. Mohan Koeri, 2 P.L.T 724 : (A.I.R (8) 1921 Pat. 353 : 23 Cr. L.J 64). Undoubtedly these two decisions contain observations which support the contention of Mr. T.K Prasad. Mr. Bajrang Sahay arguing against the reference has referred to other decisions in which it was held that the failure to make a preliminary order in strict compliance with the provisions of sub-s. (1) of Section 145 of the Cr PC was a mere irregularity, which could be cured under S. 537 of the Code. He has placed great reliance on the Full Bench decision of the Allahabad High Court in Kapoor Chard v. Suraj Prasad, A.I.R (20) 1933 ALL. 261 : (34 Cr. L.J 414 F.B). That was a case in which a notice was issued which professed to be one under S. 145, though it did not comply with the provisions of sub-s. (1) of S. 145. The argument advanced was that as the Magistrate did not proceed in accordance with the law and as he did not strictly comply with the provisions of S. 145, he had no jurisdiction in the matter. Their Lordships dealt with the argument in the following way:

“Now we have to consider whether the defects in the Magistrate's order deprived him of jurisdiction to proceed with the case. In other words, we have to see whether because the Magistrate did not strictly comply with the letter of the law in formulating his order under S. 145(1), he had no jurisdiction to proceed with the case. On this point a large number of cases have been cited and as most of the cases have been decided by learned Judges of this Court, sitting singly, we do not propose to examine each and every one of them. We may also point out that many of these judgments do not consider the effect of S. 537 upon defects in the order passed under S. 145(1) …..

Now, if we read S. 145, in the light afforded by the sections quoted above, we see that if the Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular way. If this view be correct, the jurisdiction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. There are two things; One is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate to follow certain directions contained in the Cade, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction.”

6. If I may say so with respect, I agree with the observations made above. The other decision on which Mr. Bajrang Sahay relies goes even further. In Ratan v. Tika, A.I.R (26) 1939 Lah. 233 : (40 Cr. L.J 784) it was observed that defects, such as failure to make an initial order as required by sub-s. (1) of S. 145, failure to serve notice on opposite party according to law or to affix copy of order of Magistrate to some conspicuous place at or near the subject of dispute, were defects which S. 537 could cure. They are not defects which necessarily vitiate the proceedings. This question of the distinction between an irregularity and illegality has caused difficulties and given rise to decisions all of which cannot be reconciled. Fortunately, however, the matter has now, I think been clarified by a decision of their Lordships of the Judicial Committee in Pulukuri Kottaya v. Emperor, A.I.R (34) 1947 P.C 67 : (48 Cr. L.J 533). Their Lordships were dealing with a case in which there was a breach of the proviso to Section 162 of the Cr PC. Their Lordships stated as follows:

“There are, no doubt, authorities in India which lend some support to Mr. Pritt's contention, and reference may be made to Tirkha v. Nanak, 49 All. 475; (A.I.R (14) 1927 All. 350 : 28 Cr. L.J 291) in which the Court expressed the view that Section 537 of the Cr PC, applied only to errors of procedure arising out of mere inadvertence, and not to cases of disregard of, or disobedience to, mandatory provisions of the Code and to In re Maduramuthu Vannian, 45 Mad. 820 : (A.I.R (9) 1922 Mad. 512 : 24 Cr. L.J 124), in which the view was expressed that any failure to examine the accused under Section 342 of the Cr PC, was fatal to the validity of the trial and could not be cured under S. 537. In their Lordships' opinion this argument is based on too narrow a view of the operation of S. 537. When a trial is conducted in a manner different from that prescribed by the Code as in Subramania Iyer v. King-Emperor, 28 I.A 257 : (25 Mad. 61 P.C), the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed by the Code, but some irregularity occurs in the course of such conduct, the irregularity can be cured under S. 537, and nonetheless so because the irregularity involves, as must nearly always be the case, a breach of one or more of the very comprehensive provisions of the Code. The distinction drawn in many of the cases in India between an illegality and an Irregularity is one of degree rather than of kind. This view finds support in the decision of their Lordships' Board in Abdul Rahman v. Emperor, 5 Rang. 53 : (A.I.R (14) 1927 P.C 44 : 23 Cr. L.J 259), where failure to comply with Section 360 of the Cr PC, was held to be cured by Ss. 535 and 537.”

7. In my opinion, the failure in the present case to draw up a formal preliminary order in accordance with the provisions of Section 145(1) of the Cr PC, was nothing more than a mere irregulartiy. I realise that in certain cases the irregularity may go to such a degree that it will vitiate the subsequent proceedings; it may also cause great prejudice in some cases; but in the case before me no question of prejudice arises. The parties knew what the dispute was about; they knew what the disputed lands were; they had no difficulty in filing written statements of their respective claims; they gave evidence without any difficulty; their lawyers argued the case without any difficulty; no objection was ever raised by any of the parties to the absence of a formal order under sub-s. (i) of S. 145. As a matter of fast, in the proceeding under S. 144 full detail were given, and the parties had no difficulty in knowing what the dispute was about. In view of these circumstances, I am unable to agree with the learned Sessions Judge that the failure to draw up a formal order under Section 145(1) of the Cr PC, was such as to vitiate the subsequent proceedings.

8. As to the failure to serve the order in accordance with sub-s. (3) of Section 145 of the Cr PC, there can be no doubt that even on the decisions on which reliance has been placed by Mr. T.K Prasad, the failure was a mere irregularity which could be cured under S. 537 of the Code.

9. Lastly, one of the points referred to by the learned Sessions Judge is that some members of the second party did not appear, and the case was heard in their absence. The learned Magistrate while passing the final order made it clear that the order would have no effect as against the persons who were not parties to the proceeding. Apart, however, from that, it seems that except Barhan Mahton and Genda Mahton, no other persons of the second party had any claim to the raiyati lands of Lalo Mahton. The proceeding under S. 144 related also to other lands, but the learned Magistrate made it quite clear that the proceeding under Section 145 of the Cr PC, related only to the raiyati lands of Lalo Mahton. That being the position, no other members of the second party, except Barhan Mahton and Genda Mahton, were necessary parties to the proceeding under Section 145 of the Cr PC. These two persons filed written statements. They led evidence and their arguments were heard before the learned Magistrate passed the final order. I do not think it is now open to them to say that the learned Magistrate had no jurisdiction to initiate a proceeding under Section 145 of the Cr PC.

10. For the reasons given above, I do not think there is any merit in the reference.

11. The inference is accordingly discharged.

V.B.B

12. Reference discharged.