1. This is a rule calling upon the District Magistrate of Nadia and on the second party to a proceeding under Sec. 145 of the Criminal Procedure Code to show cause why the order of the Magistrate made under that section against the petitioners who were the first party to the proceedings in the Court, below, should not be set aside on two grounds, namely first, that no notice was published on the laud in dispute as required by sub-section (3) of Sec. 145, and secondly, that the Police report does not definitely state that there was likelihood of a breach of the peace., Under Sec. 435, Cl. (3) of the Criminal Procedure Code, a proceeding under Ch. XII, which treats of disputes as to immoveable property and contains Sec. 145, is not a proceeding within the meaning of that section, and consequently, this Court has no jurisdiction, in the exercise of its revisional powers, to interfere with the order of the Court below. But it has been held in a series of decisions of this Court that this does not affect the jurisdiction of the High Court to interfere under the powers of general superintendence vested in it by Sec. 15 of Stat. 24 and 25 Vict. C. 104; these cases, however, lay down that this Court should not ordinarily interfere under the Charter, unless it is found that the Magistrate taking proceedings under Ch. XII has acted without jurisdiction; See Hurhullubh v. Luchmeswar (1), Doulat Koer v. Rameswari (2), Laldhari v. Sukdeo (3). The same view has been taken by the Bombay High Court in In re Pandurang (4) and by the Allahabad High Court In re Nathu Mal (5) and Mahadeo v. Bisu (6), although in the later case of Maharaj v. Har Charan (7) the learned Judges of that Court went so far as to hold that Sec. 1.6 of the Charter Act does not override Sec. 435 of the Code of Criminal Procedure, so as to enable the High Court in the exercise of its powers of Superintendence to interfere with an order passed by a Court having jurisdiction under Ch. XII of the Code, interference with which in revision is excluded by Sec. 435, cl. (3). It is manifest, however, that the cases which recognise the power of interference of the High Court under the Charter, limit the exercise of such power ordinarily to cases in which the subordinate Court has acted without jurisdiction; and the same doctrine has been uniformly recognised in civil cases in which it has been held that the High Court will not ordinarily interfere under the Charter on the ground that the judgment passed by a Court having jurisdiction is erroneous; see Tej Ram v. Harsukh (8) and the cases referred to at p. 104; In re Lukhykant (9). In determining the questions raised before us we must therefore in the first place examine whether the decision of the Magistrate which we are called upon to revise was made without jurisdiction.

2. The first ground upon which the validity of the order made under Sec. 145, is challenged is that no notice was published on the laud in dispute as required by cl. (3) of that section and it is argued by the learned Vakil for the petitioner on the authority of the case of Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. () that the provisions of this clause are of a mandatory character and that the failure to publish a copy of the order in accordance with these provisions affects the jurisdiction of the Court below. It must be conceded that the case relied upon lends support to the contention advanced on behalf of the petitioner; but, if the learned Judges intended to lay it down as an inflexible rule of law that the failure to publish the notice contemplated by cl. (3) of Sec. 145 destroys the jurisdiction of the Magistrate and nullifies the subsequent proceedings, we are unable to assent to this view. Any such general proposition does not, in our opinion, sufficiently distinguish between the notion of the jurisdiction of a Court and the mode in which such jurisdiction is to be exercised. The extent to which the restraints attaching to the mode of the exercise of the jurisdiction of a Court should be included in the conception of the jurisdiction itself, is a question of some nicety upon which there has been considerable difference of judicial opinion. Jurisdiction may be defined to be the power of a court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. Such jurisdiction naturally divides itself under three broad heads, namely, (1) with reference to the subject matter, (2) the parties and (3) the particular question which calls for decision. A court cannot adjudicate upon a subject matter which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject matter is a condition precedent to the acquisition of authority over the parties; and if a court has no jurisdiction over the subject matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal or its nullity may be established when it is sought to be relied upon in some other proceeding. As regards jurisdiction in relation to persons, a Court cannot act upon persons who are not legally before it, upon one who is not a party to the litigation, upon a petitioner who has not invoked the exercise of its powers or upon a defendant who has never been notified of the proceedings; but, jurisdiction in relation to a person, is not essential in the same sense as jurisdiction in relation to the subject matter, because defect of suck jurisdiction may be waived. As regards jurisdiction in relation to the, particular question which a Court assumes jurisdiction to decide, it can pass judgment only upon a matter which has been submitted to its determination and which, under the statute, it has authority to decide; for instance, if it has authority to decide, a question of possession only, it cannot decide a question of title. Question of jurisdiction may consequently arise in one of three ways, that is, either in relation to the subject matter or in relation to the parties or in relation to the question submitted for the decision of the Court. Another class of questions may, however, arise, namely, whether a Court in the exercise of the jurisdiction which it possessed, has acted according to the mode prescribed by the Statute. If such a question is raised, it relates obviously not to the existence of the jurisdiction, “but to the exercise of it in an irregular or an illegal manner. We are not prepared to accept the view that, a non-compliance with every rule of procedure destroys the jurisdiction of the Court. Such noncompliance may in some cases amount to nothing more than an irregularity and consequently bo insufficient to invalidate the proceedings, until it is shown that any party had been prejudiced by reason thereof. In other cases, such non-compliance may amount to an illegality and thus destroy the validity of the whole proceedings. As illustrations of the former class, reference may be made to the decisions of the Judicial Committee in the cases of Tassaduk v. Ahmad Husain (), and Malkarjun v. Narhari (). In the first of these cases, it was held that a sale held in contravention of the express provisions of Sec 290 of the Civil Procedure Code which provides that no sale shall take place until after the expiration of at least 30 days from the service of the sale proclamation, was not void by reason of illegality, but was at most an irregular sale, liable to be set aside on the grounds specified in the Code. In the second case it: was held that if an execution proceeding is carried on in contravention of the provisions of Sec. 248 of the Civil Procedure Code, which provides that the Court shall issue a notice to the party against whom execution is applied for, if he is the legal representative of a party to the suit in which the decree was, made, such proceeding cannot be regarded as a nullity because the Court had no jurisdiction to proceed in the manner it did, but is at most an irregular proceeding liable to be set aside on the grounds defined in the Code. As an illustration of the second class of cases in which it has been held that non-compliance with the procedure laid down, in the Code, amounts to an illegality sufficient to invalidate the proceedings, reference may be made to the decision of the Judicial Committee in the case of Subramania Iyer v. King Emperor (), in which their Lordships held that where a trial has been conducted in contravention of the provisions of Sec. 231 of the Criminal Procedure Code, such a trial is plainly prohibited and illegal; their Lordships pointed out the distinction between a mere irregularity and an illegality, and observed that when the Code positively enacts that a trial shall not take place in a particular mode, the contravention of the Statute cannot fall within the description of an irregularity. The question therefore arises, when it is alleged that there has been a non-compliance with the strict rules of procedure in any particular case, whether such non-compliance amounts to an irregularity or to an illegality. Now section 145 of the Criminal Procedure Code, after providing in clause (1), how the initial order is to be drawn up and what it is to contain, lays down in clause (3), that a copy of the order shall be served upon such person or persons as the Magistrate may direct and at least one copy shall be published by being affixed to some conspicuous place sat or near the subject of dispute. This is followed by clause (4) which lays down that the Magistrate shall then enquire into the question of possession of the subject matter of the dispute. We are unable to hold that the non-publication of the order at or near the subject of dispute, destroys the jurisdiction of the Magistrate to hold an enquiry in the question of possession. The object of the publication of the order in the manner described is, as is stated in the cases of Krishna Kamini v. Abdul Jubbar () and Solemottah v. Ishan Chandra (), to serve as a general notice to all persons interested in the subject of dispute; in other words, the intention of the Legislature appears to have been that not only should there be a service of the order upon such person or persons as the Magistrate may direct, that is, such parties as appear to the Magistrate to be concerned in the dispute, but that there should be a general publication of the order, so as to bring the proceedings to the notice of all persons interested in the property in dispute. We are unable to hold that if this latter notice is not published, the omission amounts to anything more than an irregularity in the procedure. The learned Vakil for the petitioner asked us to read clause (4) of Sec. 145, as if it provided that until the notices mentioned in clause (3) had been duly served and published, the Magistrate shall not hold an enquiry into the question of possession. We cannot however put a construction upon the Code, which is not justified either by its letter or by its spirit: nor are we able with all respect for the learned Judges who decided the cases of Solemollah v. Ishan Chandra () and Hari Kissen v. Kashi Prosad () to adopt the view that the publication of the notice on the land under clause (3) is a condition-precedent to the holding of an enquiry under clause (4), and that such non-publication takes away the jurisdiction of the Court. In our opinion the non-publication of the order at or near the subject matter of the dispute, is an irregularity by reason of which this Court may be invited to set aside the proceedings only if it is shown, that any party had been prejudiced thereby. In the case before us, the initial order was served upon both the parties in the manner prescribed by the Code, but it was not published upon or near the subject of dispute. The parties appeared before the Magistrate, took no objection to the regularity of the proceedings and adduced a mass of evidence upon the question of their respective possession of the land in dispute. The Magistrate has determined upon such evidence that the first party is in possession and has made the usual order under clause (6) of Sec. 145 in his favour. The second party against whom this order has been made now appears before this Court and invites us to set aside the whole of the proceedings on the ground that the initial order was not published on the land in accordance with Sec. 145, clause (3). It is not suggested that there are any third parties interested in the land who might have appeared before the Magistrate, if the order had been so published; nor is it suggested that either of the parties to the proceedings has been prejudiced in the remotest degree by the non-publication of the order. But the validity of the proceedings is broadly challenged on the ground that the non-publication of the order on the land took away the jurisdiction of the Magistrate to enquire into the question of possession, and to make any order under Sec. 145. For the reasons we have fully stated before, we are unable to treat their conteution as well founded. It is admitted that the property in dispute is situated within the local jurisdiction of the Magistrate; it is also conceded that the initial order was duly notified to the parties who were intended to be affected by the proceedings; and, it is not questioned that the Magistrate was competent to initiate and carry on proceedings under Sec. 145, Cr. P.C; all the elements necessary to give him jurisdiction to make an order under cl. 6 of that section, consequently, existed; it is difficult to see how or when he lost the jurisdiction which he undoubtedly possessed. It can at most be suggested that there was an irregular exercise of his jurisdiction; and if by reason of the omission to publish on the land the order under clause (3) of Sec. 145, any person had been deprived of an opportunity of being heard in the proceedings it would have been an irregurality for which the proceedings might be set aside by this Court; this view is in accordance with that taken in the case In re Pandurang (). In any event no reason has been advanced why this Court should exercise its extraordinary power of interference under the Charter to set aside the order of the Magistrate upon a ground which was not taken in the Court of first instance, and for an omission which has in no way prejudiced the petitioner. We are satisfied that such interference is neither invited nor required in the interests of justice.

3. The second ground upon which we are invited to set aside the order of the Court below is that Police reported upon which the initial order of the Magistrate was found does not definitely state that there was a likelihood of the breach of the peace and in support of this argument, reliance is placed upon the cases of Kali Kishen v. Anund Chunder () and Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. (). It appears to us, however, that there is no substance in this contention, for in our opinion the Police report taken as a whole does show that there was a likelihood of the breach of the peace.

4. The result, therefore, is that in our opinion neither of the two grounds upon which the propriety of the order of the Magistrate is questioned, can be successfully maintained and that this Rule should be discharged.

5. The only question on which we feel any doubt is whether we can discharge this Rule ourselves, or whether in view of the decision in the cases of Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. (), Solemollah v. Ishan Chundra (), and Havi Kissen v. Kasi Prasad () and Rule No. 1, Chap. V of the Rules of this Court, we should refer the question of the correctness of the decision in these cases to a Full Bench.

6. The Rule with which we are now dealing has been issued under Sec. 15 of the Charter, not under the Code of Criminal Procedure. Still we are of opinion that Rule 1 of Ch. V, of the Rules of Court includes a point of law arising in a case in which we are exercising our jurisdiction under the Charter.

7. We therefore consider, it advisable to refer this case to a Full Bench and the question we would propound for their decision is:— Whether the omission to publish a notice under Sec. 145 cl. (3), Cr. P.C, at some conspicuous place at or near the subject of dispute is an illegality which deprives the Magistrate of jurisdiction.

8. The case was then argued before the Full Bench.

9. Babu Dasorathi Sanyal (with him Babu Atulya Charan Bose for Babu Prasanna Gopal Roy for the Petitioner.— Question is whether; direction to publish notice under Cl. (3) of Sec. 145, Cr. P. Code, is mandatory. Intention of the Legislature is to be gathered from all the sub-sections read together. If conditions are prescribed by the Legislature, they must be complied with, if not, the proceedings become, bad in law. This is clear from the use of the words “he shall then etc.”. “He shall then” means, then and then only. See the case of, Nusserwanjee v. Meer Mynoodeen (). Before 1898 the clause about notice was not in the Code. In the earlier Codes of 1861 and 1872, Sees. 318 in the former and 530 in the latter, the word then did not occur. It was first introduced into the Code of 1882, but there was nothing about notice as there is in Cl. (3) of the present Code. The reason being that the order was binding upon the whole world. All parties were to be informed. Intentions of the Legislature are not mere formalities. The word then shows that the proceeding clauses are conditions precedent. See Solemollah v. Ishan Chandra, (). The Charter, Sec. 15, confers greater powers than Sec. 622, C.P.C, not limited merely to questions of jurisdiction. See Krishna Kamini v. Abdul Jubbar (). After a proceeding is drawn up no other parties can come in. See Krishna Kamini ().

Ghose, J.:— But if parties are added subsequently, will it be necessary to draw up a fresh proceeding ?]

11. No, My Lord. The Full Bench case in 6 C.W.N says it will not be necessary.

Francis W. Maclean, C.J:— Look at Cl. (5) of Sec. 145. “The order of the Magistrate shall be final.”]

13. Order there means the initial order in Sub-Sec. (1). Cl. (5) shows the wisdom of the other clauses.

14. There are numerous cases where the High Court under its power under the Charter set aside orders purported to be made under Sec. 144, Cr. P. Code, which were beyond the scope of the section. See Gopi Mohun v. Taramoni (), Golam Mohamad v. Bhuban (), Roop Lal v. David (), Kharoo Lal v. Shyam Lal ().

15. The law says “shall” be published. This must be held to be mandatory. “Shall” is also used in Cl. (4). The contravention of any of the mandatory directions ought to be held to be sufficient to make the order bad, and the High Court ought to set such order aside under Sec. 16 of the Charter. For instances where orders were set aside by the High Court, on the grounds of (a) omission to draw up initial orders under cl. (1). See Sukru Dosadh v. Ram Pergash (), Krishna Kamini v. Abdul Jubbar (), (b) omission to take evidence See Surya Kanta v. Hem Chunder (), Manmaiha v. Baroda (), (c) one party being debarred from adducing evidence, See Kali Nath v. Abhoy (10), (d) omission to serve notice on the spot, cases exactly in point. See Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. (), Solemollah v. Ishan (), (e) non-pnblication of notice under Reg. VIII of 1819 makes sale bad, See Maharajah of Burdwan v. Tarasundari (), Ahsanullah v. Haricharn (). The publication of the notice is an essential preliminary, omission of which makes the order of the Magistrate one without jurisdiction. Power of superintendence under Sec. 15 of the Charter exercised even when Sec. 622, C.P Code, did not apply. See Civil Rule No. 2009 of 1903 decided by the Chief Justice and Geidt, J. on the 24th July 1905.

16. Babu Brajendra Nath Chatterjee—for the Opposite Party.— The word “shall” may be used in a directory sense. Some of the cases are mentioned in the Order of Reference. “Shall” is used in that sense in many other sections of the Code. See sections 364, 254, 255 (1), 134, 492. As to the latter two sections See Parbutty Charan v. Queen-Empress (), Abasee Begum v. Umda Khanutn (). The rule is where powers and privileges are conferred on a public officer or parties on certain conditions, then those conditions become essential preliminaries to the exercise of the power or the enjoyment of the privileges, but where public duty is imposed on certain conditions, then the conditions are directory only and non-compliance with them does not make the performance of the duty null and void. See Maxwell 2nd Edition, pp. 452, 459, and Wilberforce on Statute Law, p. 209. The cases cited by the other side from I.L.R 9, Calc, I.L.R 20 Calc. and 6 M.I.A deal with powers conferred on certain conditions. But under Sec. 145, a public duty only is imposed upon the Magistrate, viz., to prevent a breach of the peace and to protect the possession of a party about to be wrongfully dispossessed; and the Statute lays down certain conditions in connection with the performance of the duty.

17. Non-publication of a notice under cl. (3) is only an irregularity which is cured by Sec. 537 of the Code. The language of the clause shows that the sub-section casts a duty not on the Magistrate but on a ministerial officer, it is a ministerial and not a judicial act.

18. The word “then” does not make the preceding clause a condition precedent. It only means an ordinary sequence of time, and nothing more. The word “then” is used in many other places in the Code in the same sense. See Secs. 254, 255 (1), Cr. P. Code; also in Sec. 286, cl. (1) and (2) and in Sec. 309; See also sections 422 and 423 (1) of the Code. If the Legislature intended to use the word “then” to make the preceding clause a condition precedent it would have used stronger and more appropriate word such as “then and then only” or “not till then.” It is a rule of construction that matters should not be considered conditions precedent unless they are expressly declared to be so. See Thompson v. Harvey (). The word “then” occurred in the Code of 1882 where cl. (3) did not exist. This shows that “then” refers to the filing of written statements and not to the publication of the order under cl. (3). Non-publication of the order under cl. (3) is an irregularity which does not affect jurisdiction. The jurisdiction of the Magistrate depends upon two essentials, viz. (1) probability of a breach of the peace, (2) his satisfaction as to such probability, See Krishna Kamini v. Abdul Jubbar ().

Ghose, J.:— If the Magistrate takes no notice of sub-section (3), what then?

Rampini, J.:— That depends on whether the parties appear or not. If the parties appear, it is not a question of jurisdiction

21. When a Magistrate acquires jurisdiction properly upon the two essentials being fulfilled, any omission of any subsequent step in the procedure cannot affect his jurisdiction and make the order bad.

22. Even if the omission is more than an irregularity it is at best an illegality in the procedure which the High Court cannot revise. See Sec. 435. The power of the High Court cannot over-ride express provisions of law. Power of superintendence under the Charter must be exercised consistently with the Statutes made by the Legislature, See Sec. 38 of the Letters Patent for Bengal and the cases of, Kurrem v. Mohhoda () and Maharaj Tewari v. Haricharan (). The power of the High Court under the Charter is discretionary and it is not bound-to interfere in every case. See Sreemutty Dassee v. Sreenibash (). The High Court exercises the power only where there has been a failure of justice and where the party asking interference is not guilty of laches Or blame. See Drobomoyee v. Bipin (), Sreemutty Shoovankurry v. Dwarka Nath (). Here no one has been prejudiced; Petitioner did not raise this objection before the Magistrate. If in this case the High Court interferes it will be not to prevent injustice but to prejudice and injure the cause of my client.; For if a fresh proceeding be instituted then my client's dispossession will be more than two months prior to the fresh proceeding, and the Magistrate will not maintain his possession.

23. The Advocate General (The Hon'ble Mr. O'Kinealy) for the Crown:— the High Court's power of superintendence under the Charter, Sec. 15, is limited to cases of injustice. The petitioner did not raise the objection in the lower Court. He does not say either in his petition or in his affidavit that he has been prejudiced. Interference in such a case would not be superintendence under Sec. 15 of the Charter.

24. Power of Superintendence was first given to the Supreme Court by cl. 21 of the Supreme Court Charter. The words are “order and control.” This power was exercised by means of writs of Mandamus. When “Sudder Court” was established, superintendence ceased, but it was revived when High Court was constituted, but the power was to be exercised on the same principles as it was exercised by the Supreme Court. Sec. 45 of the Specific Relief Act enumerates the mandatory power, or powers of superintendence, and shews how those powers are to be exercised and their nature. It shows that the High Court can exercise its powers of superintendence only where there has been a denial of justice causing prejudice. Manifest injustice must be shown. I do not contend that the High Court's power of superintendence is limited only to those cases where the inferior Courts act without jurisdiction or refuse to exercise jurisdiction vested in them the High Court can interfere under the Charter whenever the Subordinate Court's act with illegality or even material irregularity. But in every case it must be shown that denial of justice has taken place. See Girdhari v. Hurdeo (), Nilmoni v. Taranath (), Madhub Chunder v. Sham Chand ().

25. In Sec. 145, there is not a word about jurisdiction. As to powers of Magistrates to act and to pass orders under Sec. 145, C.P Code, See Secs. 35 and 36 of the Code and Schedule III, cl. (7). Cl. (1) of Sec. 145 does not give jurisdiction; jurisdiction already exists by virtue of Sec. 36 and Sch. III of the Code Sec. 145, Cr. P. Code, has been extended, to Calcutta and the other Presidency towns. Strict adherence to the clauses cannot be called matter of essentials which cannot be observed in detail by Presidency Magistrates.

26. The object of cl. (3) of Sec. 145 is to give notice to outsiders, persons on the spot not to commit breach of the peace. This is clear from cl. 4 in which nothing is said of these outsiders.

27. The test of illegality is express prohibition by the Legislature. See Subramania Ayyar v. King-Emperor (). It was irregular not to affix the notice but, the affixing of notice is not to be connected with the governing idea of the section. The Legislature did not intend that no proceeding under Sec. 145 can go on without it. The argument based on the word “then” is not sound. The Magistrate may pro ceed with the case within 5 minutes of the publication of the notice under cl. (3). There is nothing in the section which: lays down that the Magistrate shall wait for sometime after publication of the notice under cl. (3) before he can proceed with the enquiry under cl. (4). Then refers to the time when the record is complete, but it has nothing to do with cl. (3).

28. The High Court has no appellate, no revisional jurisdiction, but it has the power under the Charter to see that there may be no denial of justice. Even an order without Jurisdiction may be a perfectly good order. Orders under the section have nothing to do with jurisdiction. Once the Magistrate is satisfied that there is a dispute likely to cause a breach of the peace, he can proceed to pass order Under the section.

29. Babu Dasarathi Sanyal in reply.— The word “then” is explained in the case of Krishna Kamini () Refers to Prinsep's Cr. P. Code; notes to Sec. 145, p. 114. History of Legislation shows that it was a special jurisdiction conferred on the Magistrates. Reg. II of 1793 gave no right except to Zilla Courts to decide questions of a civil nature and dispute. Reg. XV of 1824 for the first time gave power to the Criminal Courts to decide cases under Sec. 145. The section should be strictly construed. It has been conceded by the learned Advocate-General that the High Court can interfere even where there is no want of jurisdiction, where there have been illegalities or even irregularities. The question whether the present case is a fit one for the exercise of the powers of superintendence of the High Court has not been referred to the Full Beneh. 01. (3) is mandatory and not directory. If it is held to be directory many inconveniences will arise. That the Magistrate did not publish the notice as required by the clause is no fault of my client. He has no control over the Magistrate and he has not been guilty of any laches.

The following judgments were delivered

Francis W. Maclean, C.J:— The question submitted to us is “whether the omission to publish a notice under Sec. 145, (3) C. Cr. P., at some conspicuous place at or near the subject of dispute is an illegality which deprives the Magistrate of his jurisdiction.”

31. The question has been elaborately dealt with by the Referring Judges in the Reference, and as we concur in the main in their reasoning and in their conclusion, we do not think it necessary to deal with the matter at any great length. The power of interference which we possess in relation to cases under Sec. 145, C. Cr. P., is only under Sec. 15 of the Charter Act, which, in giving this Court a general power of superintendence over the Subordinate Courts, vests in it a power somewhat analogous to that of the King's Bench Division in the Supreme Court in England to interfere by mandamus, and, in our opinion, the power, which is discretionary, ought, in relation to cases under Section 145, to be exercised with every caution. Assuming that, in any particular case, the Court has proceeded with irregularity, we do not think that this Court should interfere unless it can be shown that some one has been materially prejudiced by such irregularity. If, however, the Subordinate Court has acted without jurisdiction, this Court will interfere. In our opinion, the mere fact that the Court omitted to have a copy of the Magistrate's order, referred to in Section 145, published, by affixing it in some conspicuous place at or near the subject of dispute, did not deprive the Court of its jurisdiction to deal with the case. “We express this opinion with some diffidence, as a different view has been expressed by Division Benches of this Court, which is entitled to every consideration and respect. Assuming that sub-section (1) of Section 145 has been complied with, the Court had undoubted jurisdiction to deal with the case. Has this jurisdiction been lost by reason of the omission as to notice referred to above? “We think not. We regard the provision as to publication of the order in Sub-Sec. (3) of Section 145 as directory and as a matter of procedure only, and not as destroying the jurisdiction of the Court, if not complied with. Sub-Section (3) of Section 145 is clearly intended to provide for the manner in which the parties concerned, and such other person as the Magistrate may require to attend, are to be brought before the Court. But if the parties concerned should attend without being served with a copy of the order, it would be impossible to contend with any show of reason that an enquiry held in their presence would be without jurisdiction. So, if there was no suggestion that there was any one else interested who could only be reached by the publication of a copy of the notice at or near the subject of dispute, it could not be said that the mere fact that a copy of the order had not been published on the spot would deprive the Magistrate of jurisdiction to proceed with the enquiry. Much reliance has been placed by the petitioner upon the word “then” in Sub-Section (4). It has been urged that the use of the word “then” in Sub-Section (4) renders the publication of the order locally a condition precedent to the passing by the Magistrate of a final order under Sub-Section (6). But in our opinion the word “then” applies only to the time or order of the Magistrate's proceedings, and was not intended to deprive him of jurisdiction if the notice had not been duly published.

32. In the case before us, the hollowness of the petitioner's contention is sufficiently transparent. The parties concerned in the dispute were duly served: they appeared, and the case was fought out before the Magistrate. The present petitioner subsequently discovered, by searching the records, that a copy of the order had not been published by being affixed in some conspicuous place at or near the subject of dispute; and then applied for the present Rule. There is not the slightest ground suggested that any one has been in the least prejudiced by the omission. We, therefore, think that, unless it be shown that some one interested has been materially prejudiced by the irregularity in procedure, the Court ought not to interfere, under Section 15 of the Charter Act either in this or in similar cases. At the same time, we desire to impress upon the Magistrates the necessity of a strict compliance with Sub-Section (3) of Section 145, C. Cr. P., in order to avoid any such question as the present being raised.

33. In our opinion the cases of Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. (), Solemollah v. Ishan Chandra Das (), and Hari Kishen v. Kashi Prosad (), are not cases in which the Court, in exercise of its discretion under Section 15 of the Charter, should have interfered.

34. The proceeding under Sec. 145 is, in reality, a civil one, and the party who considers himself aggrieved by the order can come to a Civil Court for redress. The question must be answered in the negative. The Rule is discharged.

Ghose, J.:— The question referred to the Fall Bench for decision is “whether, when a Magistrate takes action under Section 145 of the Code of Criminal Procedure, but omits to publish a copy of his order as contemplated by clause (3) of the Section at some conspicuous place at or near the subject of dispute, it is an illegality which deprives the Magistrate of jurisdiction.”

36. Section 144 of the Code is composed of several clauses. Under clause (1)-the Magistrate must be satisfied that there is a dispute likely to, lead, to a breach of the peace, and that such dispute relates to the possession of some land or water within his jurisdiction. And upon his; being so satisfied, he shall draw up an order requiring the parties concerned in the dispute to attend his Court, and to, put in written statements of their respective claims as regards the actual possession of the subject of dispute. Clause (3) requires that the order shall be served upon the parties concerned in such dispute and at least one copy thereof shall be published at some conspicuous place at or near the subject of dispute. Under clause (4) it is provided that the Magistrate shall “then” peruse the statements put in by the parties, hear them, receive the evidence produced by them, and decide whether any or which of the parties was, at the date of the order before mentioned, in actual possession of the said subject matter. It is not necessary to refer to the other clauses for the purposes” of the decision of the question now before us.

37. It has been held by a long series of decisions of this Court that the requirements of the law as prescribed in clause (1) are essential conditions upon which the jurisdiction of the Magistrate: is depen-dent. And it has also been held in the case of Krishna Kamini v. Abdul Jubbar () by the majority of the judges, who composed the Full Bench, that clause (3) of the Section was intended to be only supplementary to clause (1), and it was framed with the object of giving all persons interested in the dispute, notice of the proceedings before the Magistrate, so that they might have an oppotunity of appearing and putting in their claims, if they have any, and that when the requirements of clauses (1) and (3) are complied with, the Magistrate is to take up the inquiry as provided by clause (4). It will be observed that the provision as to service of the order upon the parties who might appear to the Magistrate to be concerned in the dispute, and as to the publication of the order at some conspicuous place at or near the subject of dispute, occur in one and the same clause; and I think it can hardly be said, as it was stated in the course of the argument before us; that though it may be that the service upon the parties concerned is essential, the publication of the order at the place is not so essential, and that the provision as to such publication is but directory. Both stand, I think, upon the same ground. But, however, that may be, it seems to me that the Magistrate acquires jurisdiction, when the conditions as prescribed by clause (1) have been fulfilled, and that clauses (3) and (4) law down the procedure by which the said jurisdiction is to-be exercised. The procedure prescribed, however, is, as I read the section,- mandatory and not simply directory. It will be observed that in all the three clauses (1), (3) and (4) the word “shall” is used with referrence to the performance by the Magistrate of the duties as prescribed therein; and it appears to; me that when clauses (3) and (4) contain express provision as to the procedure which the Magistrate is bound to follow in making his final order determining which of the parties should be maintained in possession, such procedure is mandatory, see Nusserwanjee v. Meer Mynoodeen Khan (), and, as remarked by Banerjee, J., in the Full Bench case of Krishna Kamini, the order of the Magistrate may be interfered with under section 15 of the Charter Act, when it is made “without complying with the material preliminary conditions required to be satisfied by the procedure prescribed.”

38. I am however of opinion that when a Magistrate fails to comply with the provisions contained in clause (3), he does not act without jurisdiction; for, as already observed, he acquires jurisdiction when the conditions prescribed by clause (1) have been fulfilled; but I should think that when he violates such provisions, he acts illegally in the exercise of his jurisdiction. What, may be an illegal exercise of jurisdiction has been pointed out in various cases decided by the Courts in India and by the Privy Council, see N: A. Subramania Iyer v. King Emperor (), Queen v. Bholanath () and In re Pandurang Govind () and I am of opinion that when a Magistrate acts illegally in the exercise of his jurisdiction by omitting to follow the express provisions of clause (3) this Court in the exercise of the power conferred on it by section 15 of the Charter Act, has the power to interfere.

39. But the exercise of such powers is not obligatory upon the Court. Section 15 of the Charter Act only confers upon the Court the general powers of superintendence; and I do not think that when a Magistrate acquires jurisdiction after complying with the conditions prescribed by clause (1) of section 145, the non-compliance with the procedure prescribed by clause (3) is such an illegality that makes it obligatory upon this Court to interfere. No doubt, the Court ought to interfere, if pre-judice to any party has been occasioned, or has likely been occasioned, by the failure on the part of the Magistrate to comply with the procedure as prescribed. In the present case, no such prejudice appears to have been occasioned to any party: the parties concerned in the dispute were served with the Magistrate's order, and did appear: and it was not suggested by either of them in the Court below, nor has it been suggested before us that there is some other party concerned in the dispute who might have appeared if the order had been published in the locality. And it is noteworthy that it was only after the order of the Magistrate had been pronounced, and in order to enable the petitioner to move this Court, that a discovery was made by a search into the records of the case, that the order in question was not published in the locality. In this view of the matter, I do not think that this Court is called upon to interfere in this case under section 15 of the Charter Act, and I should answer the question referred by saying that when a Magistrate makes an order determining which party should be maintained in possession without publishing a notice under section 145, clause (3) at some conspicuous place at or near the subject of dispute, he acts illegally in the exercise of his jurisdiction: but such illegality does not deprive him of jurisdiction to deal with the case.

Rampini, J.:— I agree in the judgment delivered by my Lord the Chief Justice.

Pratt, J.:— I also agree in the judgment of the Chief Justice.

Henderson, J.:— So do I.

43. Rule discharged.