1. This is a Rule issued by this Court under Section 15 of the Charter, calling upon the District Magistrate of Dinajpur and upon the opposite party who was the first party to a proceeding under Section 146 of the Criminal Procedure Code, to show cause why the proceedings under that section should not be set aside on the ground that the initial order does not set out, the grounds on which the Magistrate considered a breach of, the peace likely, as required by, the ruling in Nittyanund Roy Bahadur v. Paresh Nath Sen (3). It appears that a report was submitted to the Magistrate by the Police on the 23rd of January 1905, on the basis of which he drew up, on the 6th February 1905, an order under Section 145, directing the parties to this Rule to attend his Court and to put in written statements of their respective claims in regard to the facts of actual possession of the land in dispute. The Police, report contains ample materials to justify the conclusion that a dispute concerning the land and likely to cause a breach of the peace existed,. and the order which was drawn, up by the Magistrate ran in these terms: “Whereas it appears from, the Police report dated 23rd January 1905, that there exists a dispute which is likely to cause a breach of the peace between the above-named parties for the possession of 2 bighas and 18 cottas in three plots of land” (then follows a description of the land and the statement of the boundaries) “it is ordered that the said parties do attend, etc.” This order was, duly, served upon both the parties and was also published by being affixed to a conspicuous place at or near the subject of dispute The parties thereupon filed written statements, in which they made various allegations as to the actual possession of the subject of dispute, and, two members of the second party further alleged that they had made no attempt to commit a breach of the peace. No objection was taken by any of the parties that the initial order which had been served upon them was defective, because it omitted to state specifically the grounds upon which the Magistrate was satisfied that a dispute concerning the land and likely to cause a breach of the peace existed. The Magistrate then enquired into the question of possession in the manner provided by clause (4) of Section 145, upon evidence adduced by both the parties, and on the 6th June 1905, made an order under clause (6) of the section in favour of the first party. The second party thereupon moved this Court and obtained the Rule which is now under consideration.
2. It has been argued by the learned Vakil who appears in support of this Rule, that the initial order drawn up by the Magistrate does not state the grounds upon which he was satisfied that a dispute likely to causs a breach of the peace existed concerning the land, that the omission to state such grounds has the effect of rendering null and void the entire proceedings and takes away his jurisdiction to make the final order under clause (6), and that consequently it is obligatory upon this Court to interfere under Section 15 of the Charter and set aside the proceedings as held without jurisdiction. In support of this position, reliance is placed upon the cases of Mohesh Sowar v. Narain Bag (1), Nittyanund v. Paresh Nath (2), Sital Mondial v. Rajani Kanto () and Bepin Behari v. Nogendra Kutnar, (4) which are all decisions under Act V of 1898. Reference is also made to Gobind Chunder v. Abdool Kayad, (5) which was decided under Section 530 of Act X of 1872 and Queen-Empress v. Gobind Chandra (6) which turned upon the construction of Section 145 of Act X of 1882. Our attention is also invited to the case of Nusserwanjee v. Meer Nynoodeen () as an authority for the proposition that wherever jurisdiction is given to a Court by Statute and such jurisdiction is only given upon certain specified terms contained in the Statute, these terms must be complied with in order to create and raise the jurisdiction, and, if they be not complied with, the jurisdiction does not arise. It is further argued upon the authority of Queen v. Bholanath Sen () that criminal proceedings are bad unless they are conducted in the manner prescribed by law, and if they are substantially bad in themselves, the defect is not cured by any waiver or consent of the prisoner. It is contended on the other hand by the learned Counsel who appears to show cause, that inasmuch as the Police report contained ample materials to satisfy the Magistrate that there was a likelihood of a breach of the peace, it was sufficient compliance with the law for the Magistrate to cite it as the ground of his proceeding on which he was satisfied that a dispute within the terms of Section 145 existed. In support of this proposition, reliance is placed upon the cases of Goluck Chandra v. Kali Charan () and Dhanput Singh v. Chatterput Singh (). It is further argued that assuming that the initial order did not contain a specific statement of the grounds, the order was at most defective in form and such defect neither affected the jurisdiction of the Court nor amounted to an illegality sufficient to vitiate the proceedings, and that it was at most an irregularity which has not prejudiced either of the parties. In support of this proposition reference is made to the case of Sabid Mondul v. Lakshmi Mondul (). It is also contended that it is not obligatory on this Court to exercise its extraordinary jurisdiction under the Charter, as no suggestion is made of any failure of justice by reason of the alleged defect in the initial order; in support of this contention the learned Counsel invites our attention to the cases of Drobo Moyee v. Bipin Mundul () and Shoovankurry v. Dwarka Nath (7). After a careful examination of the arguments addressed to us on both sides we are of opinion that the contentions advanced on behalf of the petitioner, though supported to some extent by some of the authorities relied upon, are not well founded on principle and ought not to prevail.
3. The first ground urged on behalf of the petitioner in support of the rule, is that the initial order is substantially defective, because it does not contain a statement of the grounds upon which the Magis trate was satisfied that a dispute likely to cause a breach of the peace existed, and, as authorities for this position we are referred to Mohesh Sowar v. Narain Bag (), Nittyanund v. Paresh Nath () and Sital Mandal v. Rajani Kanto (). If the learned Judges who decided these cases intended to lay it down as a hard and fast rule of law, that the initial order is defective because it is not self-contained and does not state in express words the grounds which may appear in the Police report on which the order is founded and to which it makes reference, we are unable to accept any such rule. It appears to us that the view taken in the cases of Dhanput Singh v. Chatterput Singh (), Goluck Chandra v. Kali Charan () and Gobind Chunder v. Abdool Sayad (), namely, that a reference by a Magistrate in the initial order to a Police report which clearly sets out the probability of a breach of the peace, is a sufficient statement of the reasons for his being satisfied of the existence of a dispute likely to cause a breach of the peace, is more reasonable. We are inclined to hold that in determining whether a particular initial order is defective or not, we ought to look to its substance rather than to its form, and although a reference to any other document ought not to be necessary to ascertain the grounds upon which the Magistrate has proceeded, yet it does not follow that the Police report ought not to be taken as part of the proceeding and by reference incorporated with it. No doubt if the Police report itself does not disclose any ground for holding that there is a likelihood of a breach of the peace, the position would be different. But where, as in the present case, the Police report sets out sufficient grounds and is expressly referred to in the initial order by the Magistrate, we would hold that such order sufficiently fulfils the requirements of the law. The case of Nittyanund v. Paresh Nath () is not really opposed to this view, because in that case not only had the Magistrate not set out in the order the grounds upon which he was satisfied, but he had referred to the result of a local enquiry held by himself, of which there was no report, so that there were no materials on the record which could show what were the grounds upon which the Magistrate had proceeded. It does not appear to us possible, however, to reconcile the other cases, which were placed before us and we are inclined to follow the cases of Goluck Chandra v. Kali Charan () and Dhanput Singh v. Chatterput Singh () and to dissent from the view taken in the case of Mohesh Sowar v. Narain Bag (). As to this last mentioned case, it may be pointed out that the language used in the judgment is perhaps more general than was absolutely necessary under the circumstances disclosed in the report, for the initial order not only did not contain a statement of the grounds, but did not even state the information upon which the Magistrate was proceeding, as it ought to have done according to the cases of Tarini Char an v. Amulya Ratan () and Manik v. Azimuddi ().
4. The second ground urged on behalf of the petitioner in support of the rule is that the omission to state in the initial order the grounds upon which the Magistrate is satisfied that a dispute likely to cause a breach of the peace exists, vitiates the order, renders null and void the whole of the subsequent proceedings, and takes away his jurisdiction to make the final order under clause (6). This contention would seem to receive some support from the language of the decisions in the cases of Mohesh Sowar v. Narain Bag (), Nittyanund v. Paresh Nath () and Bepin Behari v. Nagendra Kumar (). We are unable, however, with all respect for the learned Judges who decided these cases to adopt this view as well founded on principle. It appears to us that the view advanced on behalf of the petitioner, does not sufficiently recognise the distinction between the elements which are essential for the foundation of jurisdiction and the mode in which such jurisdiction has to be exercised. As we have dealt with this matter in our Order of Reference to a Full Bench in the case of Sukhlal Sheikh v. Tara Chand Ta (8) it is not necessary to repeat here our views on the subject. It is clear that in order to give jurisdiction to a Magistrate to take proceedings under Section 145, it is essential that he should be satisfied that a dispute likely to cause a breach of the peace exists and such dispute must refer to land or water or the boundaries thereof lying within his local jurisdiction. If these elements exist, the Magistrate is entitled to exercise his jurisdiction, and the first step is the recording of the initial order, the contents of which are specified in the first clause of Section 145. If the order does not strictly comply with the requirements of the Section, because it does not contain a statement of the grounds upon which the Magistrate is satisfied, it is no doubt defective, but we are unable to appreciate the grounds upon which it is Contended that such defective order is one made without jurisdiction. This argument appears to us to be based upon the fallacy that a Court has jurisdiction only to make a correct order and when it happens to make an order which is incorrect or defective, it acts without jurisdiction; such a view can hardly be maintained after the decision of the Judicial Committee in the case of Malkarjun v. Narhari (). Considerable reliance was placed by the learned Vakil for the petitioner upon a passage from the judgment of the Judicial Committee in Nusserwanjee v. Meer Mynoodeen () in which the principle is laid down that whether jurisdiction is given to a Court by an Act of Parliament or by a Regulation in India, and such jurisdiction is only given upon certain specified terms contained in the Regulation itself, it is the universal rule that these terms must be complied with in order-to create and raise the jurisdiction, for if they be not complied with, the jurisdiction does not arise. In our opinion this principle does not further the contention of the petitioner and has no application to the facts of the present case. It is obvious that the terms upon which jurisdiction is given to the Magistrate to take proceedings under Section 145, have been complied with, inasmuch as the Magistrate was satisfied of a likelihood of a breach of the peace by reason of a dispute relating to land within his territorial jurisdiction; the only question is whether such jurisdiction having been created and raised, he has exercised it in the manner prescribed by the Statute. That this distinction is well founded, will appear clearly from a closer examination of the circumstances of the case before the Judicial Committee, which turned upon the construction of Bombay Regulation VII of 1827. By that Regulation, jurisdiction was conferred upon the Civil Courts to deal with arbitration awards made out of Court, provided the reference to arbitration and the award complied with certain conditions minutely detailed in the Regulation itself. One of these conditions was that the agreement of reference should specify the time for completion of the award. An agreement of reference to arbitration was made, which contravened this condition and specified no time within which the award was to be made. It was held by their Lordships of the Judicial Committee that an award made upon such a reference was not an award which the Civil Court could deal with under the Regulation, because the Civil Court had been given jurisdiction over awards made under a specified condition and the award in suit was not an award of that description. That was, therefore, a case which stood on an entirely different ground and has no analogy to the case now before us. We are consequently unable to hold that the omission to state the grounds in the initial order makes it an order without jurisdiction so as to invalidate the whole proceedings. It is argued, however, by the learned Vakil for the petitioner that in any event, the omission to state the grounds in the initial order, amounts to an illegality sufficient to render null and void the subsequent proceedings, and, in support of this contention, reliance is placed upon the decision of the Judicial Committee in Subrahmania Iyer v. King Emperor (). We are unable to hold that the principle of that decision has any application to the circumstances of the case before us. In that case an accused person was charged with forty-one acts extending over a period of two years in contravention of the provisions of Section 234 of the Criminal Procedure Code, which provides that a person may be tried at one trial only for three offences of the same kind, if committed within a period of twelve months. Their Lordships, after pointing out the policy which underlies Section 234, observed that the disobedience to an express provision of this character as to the mode of trial is not a mere irregularity, but an illegality. The decision of their Lordships recognises the distinction between an irregularity and an illegality and cannot be treated as an authority for the proposition that non-compliance with every rule of procedure amounts to an illegality sufficient to invalidate the proceedings. Indeed, the Code of Criminal Procedure expressly recognises that such non-compliance may, in some instances, come within the description of error, omission or irregularity. The question, therefore must necessarily arise, when the jurisdiction of a Court is exercised, not strictly in accordance with the mode described by the Statute, whether the defect amounts to an irrregularity or illegality; and the answer to the question in any particular case depends upon the object and character of the rule which has been contravened. Now the object of requiring a statement of the grounds in the initial order is obviously to inform the parties, against whom proceedings are instituted, of the reasons which have induced the Magistrate to take action, and thus to enable them to make their defence properly. When, therefore, an initial order has been recorded without a statement of the reasons and has been duly served upon the parties, if they find any difficulty in preparing their defence by reason of this vagueness in the order, it is open to them to apply to the Magistrate for a statement of the grounds or to ask him to amend the order. If, however, the parties do not feel any difficulty owing to the omission of the grounds in the initial order, and adduce evidence in support of their respective cases, it is difficult to see upon what principle it can be asserted, that the defect in the order is an illegality which vitiates the whole of the proceedings. It is suggested indeed by the learned Vakil for the petitioner that if the initial order is defective, the final order becomes void by reason of Section 530, Clause (j) of the Criminal Procedure Code, which provides that if any Magistrate, not being empowered by law in this behalf makes an order under Charter XII (which includes Section 145), his proceedings shall be void. This argument seems to us to be obviously unsound, for as was pointed out in the case of Raj Mohan v. Prosunno Chandra () Section 530, Clause”) refers to a case where a Magistrate is not competent by virtue of the position he holds, or powers vested in him to try a case of the character referred to in Section 145. On the whole, therefore, we are inclined to take the view that the omission to state the grounds in the initial order does not make the order one without jurisdiction, nor does it amount to an illegality which vitiates the whole proceedings; but such omission is an irregularity for which this Court may be rightly invited to set aside the proceedings, if it is shown that it has operated to the prejudice of any of the parties. This view appears to receive some support from the decision in Sabid Mondul v. Lakshmi Mondul (). It is not suggested in the case now before us that either of the parties was placed at a disadvantage by reason of any defect or vagueness in the initial Order, and we are not prepared to hold that in a case of this description, the proceedings which appear to be substantially right, should be set aside by this Court.
5. The third and last point which requires consideration is whether, assuming that the initial order is defective and that such defect has affected the jurisdiction of the Magistrate, it is obligatory upon this Court to interfere under section 15 of the Charter. The learned pleader for the petitioner contends that this question ought to be answered in the affirmative and the cases of Mohesh Sowar v. Narain Bag () and Nittyanund v. Paresh Nath () do appear to lend some support to his argument. If however the learned Judges who decided these cases intended to lay down any general rule, we regret we are unable to adopt it. Any such general rule moreover would be inconsistent with a series of cases in this Court. Thus, the cases of Drobo Moyee v. Bipin Mundul () and Shoovankury v. Dwarka Nath () go to show that this Court will not exercise its extraordinary powers of interfer ence under the Charter unless it is shown that there has been a capital error in the judgment of the Court below and further that the applicant has entitled himself to the special interference of the Court. This view is consistent with the case of Jagomohan v. Ram Kumar () upon which some reliance was placed by the petitioner. No doubt our discretion must be exercised upon judicial principles; but where the language of the Statute itself is perfectly general we do not think that our discretion ought to be crystallized, as would be the case, if definite rules were laid down for the exercise of our discretionary power in a particular class of cases. In our opinion, the power of superintendence which this Court possesses under the Charter, should be exercised with regard to all the circumstances of each particular matter, and this judicial discretion ought, as far as practicable, to be left untrammelled and free so as to be fairly exercised according to the exigencies of each individual case. Now, in the case before us, there is no suggestion that either party to the proceedings has been in any way prejudiced by reason of the alleged defect in the initial order. On the other hand, it is suggested with considerable force that it the proceedings are set aside by this Court and fresh proceedings have to be instituted, the party who is now the successful litigant may find himself at a consider able disadvantage, because in a proceeding under Section 145 the Magistrate has to determine the question of possession with reference to the circumstances as they exist on the date of the initial order or, in case of forcible dispossession, within two months next before such date, he has to determine the question of possession as it existed immediately before dispossession. If, therefore, the party who has now lost has gained possession between the date of the initial order and the present time, he will have the benefit of such possession when the next proceedings are commenced. “We are convinced that in the present instance, at any rate, the interference of this Court is not demanded in the interests of justice and in our opinion this Rule ought to be discharged. As, however, we dissent from the view of the law taken in the cases which we have discussed at length under Rule 1, Chapter V of the Rules of this Court, we refer this case to a Full Bench and propound the following questions for decision:
1. Where an initial order made: by a Magistrate under Section 145, Clause 1 of the Criminal Procedure Code, is defective because it is not self-contained and does not state in express terms the grounds upon which he is satisfied that a dispute likely to cause a breach of the peace exists, when such grounds appear in the Police report on which the order is founded and to which it makes reference.
2. Whether when an initial order made by a Magistrate under Section 145, Clause 1 of the Criminal Procedure Code, does not contain a statement of the grounds, such order ought to be treated as made without jurisdiction or as an illegal order which vitiates the whole of the subsequent proceedings and renders void the final order under Clause (6) of that section; or whether such a defective order is an irregularity in the exercise of jurisdiction by the Magistrate, not necessarily vitiating the subsequent proceedings but justifying the interference of this Court, if it is shown that either party has been prejudiced by reason thereof.
3. Whether, when the interference of this Court is invited under Section 15 of the Charter, it is obligatory upon the Court to, interfere in any particular class of cases, for instance, where a Subordinate Court has made an order without jurisdiction or acted illegally in the exercise of its jurisdiction, or whether the exercise of the discretionary powers of this Court should depend upon all the circumstances of each individual “case brought before it.
6. The case was then argued before the Full Bench.
7. Mr. Sinha (with him Babu Shyama Prosanna Mazumdar) for the Petitioners:—
It is the compliance with all the particulars set forth in Sec. 145, Cr. P. Code, that gives the Magistrate jurisdiction; otherwise the jurisdiction does not arise. It is a special jurisdiction conferred upon Magistrates by the Statute. The intention of the Legislature is clear upon this point. In this connection, see Queen v. Runjeet Malla (), Harvey v. Brice (), Kashi Kishore Roy v. Tarini Kant Lahiri (), Elahee Newuz Khan v. Suburunnissa (), R. v. Omirto Nath Jha (), Kishore Mohun Roy, Petitioners (), Gour Mohun Majee v. Doolubh Majee (), Munglo v. Dvrga Narain (), In the matter of Kumud Narain (9), In the matter of Gobind Chander (10), In the matter of Kali Kristo Thakur (11) and Obhoy Chandra v. Mohamed Sabir (12). See also Schedule V, Form 22 of the Code of Criminal Procedure.
8. Mr. K. Chaudhury and Babu Nagendra Nath Mitter for the opposite party.
9. The Advocate-General (Hon'ble Mr. O'Kinealy) for the Crown.
10. The Opposite party and the Crown were not called upon.
The following judgments were delivered
Francis W. Maclean, C.J:— The first question submitted on this reference is “whether an initial order made by a Magistrate under Section 145, Clause 1 of the Criminal Procedure Code, is defective because it is not self-contained and does not state in express terms the grounds upon which he is satisfied that a dispute likely to cause a breach of the peace exists, when such grounds appear in the Police report on which the order is founded and to which it makes reference. “In my opinion, that question ought to be answered in the negative, namely, that it is not defective. The case has been very fully dealt with by the referring Judges, and I do not think I can usefully add anything, either to their reasons or their conclusion. I concur in that conclusion. There has, to my mind, been a substantial compliance with sub-section (1) of Sec. 145. No doubt there is a difference of judicial opinion upon that point, but on the whole, I think that the view taken in the latter cases Goluck Chandra v. Kali Charan () and Dhanpiit Singh v. Chatterput Singh () ought to prevail. I would, therefore, answer the question, as I have said, in the negative. That being so the other two questions do not arise.
Ghose, J.:— I entirely agree with the judgment which has just been delivered by my Lord. I would only add that the proceeding drawn up by the Magistrate refers, in express terms, to the Police report, and that Police report sets out sufficient grounds showing that there was a likelihood of a breach of the peace. And, as I read the proceeding of the Magistrate, it is substantially to the effect that he is satisfied upon such Police report that there is an imminent danger of a breach of the peace. In this view of the matter, I am of opinion that there was a substantial compliance by the Magistrate with the requirements of Clause 1, Section 145 of the Code of Criminal Procedure.
Rampini, J.:— I agree.
Pratt, J.:— I agree.
Henderson, J.:— I also agree.
16. Rule discharged.