1. This is a reference under Section 438, Criminal P, C. by the Sessions Judge, U, A. D. for setting aside the order passed by the First Class Magistrate Jorhat on 15.12.51 directing the restoration of possession to the two contending parties of two parcels of land as defined in the order. The main ground for reference is that there was no express order that the Magistrate drawing up the proceeding was satisfied at any stage that a dispute likely to cause a breach of the peace existed between the parties or that the Magistrate applied his mind to this aspect of the case. In the words of the learned Sessions Judge,
the initial order having been illegal and without jurisdiction, the entire proceedings in the court of the said learned Magistrate and his successor in office must be considered to have been illegal and void.
2. In my opinion, the order of the learned Magistrate dated 15-12-51 is bad on two grounds and has to be set aside. The first ground is that there was no compliance with the requirements under Section 145(1), Criminal P. C. and the second nor with the provision of Section 145(6; Cr. P. C. The Magistrate had to decide at one stage or other that there was a dispute likely to cause a breach of the peace existing between the parties and he had to decide which of the parties should be treated as being in possession of the subject-matter of dispute and he should issue an order declaring such party to be entitled to possession thereof until evicted from there in due course of law. The Magistrate had to decide the fact of actual possession on evidence and he had no business nor jurisdiction to act as an arbitrator as he did in this matter without any reference to the evidence on record. The Magistrate is not for establishing peace between the parties but had only to decide as to the fact of possession in case there is a dispute that might lead to the disturbance of the peace. Though the reference is confined only to one point, namely, the first, we are not bound to decide it on that point alone, our jurisdiction being sufficiently wide under Section 439 Cr. P. C. and we can interfere even if the final order be wrong.
3. The relevant facts are that on 5-10-51, the first party, Kissenlal Agarwalla made an application to the Senior Magistrate at Jorhat asking for drawing up a proceeding under Section 145, Cr. P. C. against four persons named as second party of whom Nagarmal Agarwalla was the leader. He stated in the petition that there was a quarrel between the parties over a plot of land of which he gave no demarcated sketch nor the area but gave a description of a plot of land where both the parties had their respective shop-houses inclusive of some open space. He further stated that the opposite parties assaulted him While he protested over raising of a shed on a portion of the disputed plot and gave no date of this occurrence but he apprehended that there might be a breach of the peace as a result of the dispute.
The Magistrate referred the matter to the Officer-in-charge of the Jorhat Police Station asking him to report if a proceeding under section 145 Cr. P. O. is necessary and the disputed land may be attached in case of necessity and made the report returnable by 1-11-50, The Police Officer submitted a report on 31-10-50 which runs as follows:
I beg to report that I made enquiry into the petition filed by one Kishan Lall Agarwalla and found that both the 1st and 2nd party are living very adjacently. The land in whole belongs to one Sahidur Rahman of Jorhat town and is divided into some different dags. In to (sic) the view of the constructing of 'Sally' a dispute took place and accordingly, the case No. 2(10) of 50 Under Section 448/379/147/426 I. p. C. is registered at the P S. and C. S. No. 138 dated 27-10-50 has already been submitted by S. I. A. Bara against the 1st party. Moreover, during my Inquiry no breach of the peace has been seen. If the detailed boundaries required the S. D. C. with the said owner of the land may kindly be asked. Hence returned.
The Magistrate Mr. K. Gogoi on 13-11-50 passed the following order in the case.
Seen police report. Draw up proceedings under section 145, Cr. P. C. Attach the land. Adjourn to 4-12-50 for filing written statement by the parties.
4. The requirement of the law is that
whenever a District Magistrate, Sub-divisional Magistrate or Magistrate of the First Class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make 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.
It has, therefore, to appear from the order in writing of the learned Magistrate that he was satisfied as to the existence of a dispute likely to cause a breach of the peace and he has to state the grounds of his being so satisfied. The learned Magistrate refers only to the police report which for itself, as I can see does not state that there was a continuance of a dispute involving a breach of the peace or that he found the atmosphere so surcharged that there might have been an outburst involving violence endangering the breach of the peace. He says categorically that there was a fracas which was the subject-matter of certain criminal case and at the time of his inspection or enquiry he found no symptom of any breach of the peace. The only point for consideration is whether we can say that simply because there was a dispute at one stage involving theft, mischief and rioting, the same is bound to recur again. It was for the Magistrate to set out clearly what he had in his mind and simply mentioning of the police report with a dubious import does not in my opinion, satisfy the requirements of Section 145(1) Cr. P. C. The learned Advocate for the first party has contended that the notice that was issued by the Magistrate in pursuance of the order of 13-11-50 indicates that the Magistrate was satisfied from the police report that there was a chance of recurrence of the quarrel between the parties. In my opinion, notices cannot always make up the lacuna in the preliminary order if it is otherwise defective or not based on materials on record. I am, therefore, inclined to reject that part of the contention on behalf of the first party that the order of 13-11-50 was sufficient to indicate that the Magistrate was satisfied on that date that there was a likelihood of the breach of the peace between the parties or that he applied his mind to this aspect of the case.
5. The learned Advocate appearing In support of the reference though referred to the illegality of the order with regard to restoration of possession did not lay much stress on it possibly because he felt that his first point was sufficiently strong or that he could not go beyond the point referred to. I have already expressed that we are not bound to confine our decision only to the point under reference but are free to examine the whole of the order to see whether it is valid to the eye of law or whether any injustice has been occasioned by such order.
Section 146 Cr. P. C. clearly provides that when the Magistrate is unable to satisfy himself as to which of the parties was in possession of the subject of dispute, he may attach the property until a competent Court has determined the rights of the parties thereto or the person entitled to possession thereof and he may withdraw the attachment at any time if he is satisfied that there is no longer any likelihood of the breach of the peace in regard to the subject of dispute. Here, the trial Magistrate has not come to any definite finding as to whether there was likelihood of the breach of the peace and in such circumstances, the order cancelling the order of attachment would have been perfectly justified. Assuming there was a likelihood of the breach of peace, he might have kept the property under attachment and referred the parties to the Civil Court for deciding as to possession. It is both parties' case that none of them are the superior landlords but are tenants of a third party and have their shop-houses on the land stated in the petition of the first party which he prayed for attachment. The dispute seemed to be narrowed down in fact on evidence and seemed to centre round only a small plot covered by an old 'Sally' (shed). The Magistrate went beyond his jurisdiction in demarcating the land according to his own choice without relying on any evidence on record. P. W. 2 himself who was examined on behalf of the first party, admits that the 'sally' existed there from before from his time and Nagarmal his successor only wanted to replace the posts, - and this if true, demolishes the first party's case. In any view, the Magistrate's order directing division of the land between the parties at his own discretion is not an order contemplated under Section 145 (6), Criminal P. C. and has to be set aside.
Much of the legal contention has centred round the point whether the Magistrate had jurisdiction to draw up the proceeding tinder Section 145 Criminal Procedure Code without being satisfied that there existed a dispute involving a breach of the peace. The word 'jurisdiction' had been used in some of the decisions that have been referred to us. This word was used only to signify whether the Magistrate's action could be justified in the matter of drawing up the proceeding that followed. We need not, therefore, be very technical and say whether the word 'jurisdiction' could be rightly used in such matters. The ground of contention really is whether the proceeding could be said to be justified and the final order valid. There have been various rulings of several High Courts where the High Court has refused to interfere with an order passed under Section 145 Criminal P. C. where the learned Judges felt that justice had been done and interference was not called for on merits. In some cases, it has been held that the defect In the order drawn up under Section 145(1), Criminal P. C. could be remedied under Section 537 Criminal P. C. In this particular matter, without coming to any decision on this point, it can be safely said as J have already indicated that there was a failure of justice by the final order and the proceeding Have been bad. In some of the decisions referred to by the learned Advocate for the first party, it has been indicated that the Magistrates followed a wrong procedure in the matter of not drawing up of formal order or in not indicating that they were satisfied that a dispute likely to cause breach of the peace existed and Judges admonished the Magistrates for not looking into the provision of the Act. I, for myself, would rather set aside the order pointing out to the Magistrates that the order is bad than admonish them personally for carelessness. Whether we would or would not have interfered in a case where the order was otherwise valid is a different matter, but in this case, the final order had been palpably wrong and we can as well say that the first order drawing up the proceeding was not proper inasmuch as the learned Magistrate did not indicate that he was satisfied from the materials on record that a dispute likely to cause a breach of the peace existed and that the police report to which he referred in the said order did not specifically state that apart from a past dispute involving some quarrel, there was the likelihood of the breach of the peace. In my opinion, the reference is, therefore, to be accepted and the order referred to therein set aside.
6. Let me consider the rulings relied on by the first party : - 'Ratan v. Tika' AIR 1939 Lah 233 (A). It has been held in this case that some of the procedural defects in a proceeding under Section 145, Cr. P. C. are curable under Section 537, Cr. P. C. but in that case the report of the Quanungo did disclose that a dispute likely to cause breach of the peace existed and then only the Magistrate recorded an order issuing notice on the parties under Section 145, Cr. P. C. and he did not issue such notice till he was satisfied from the report. In the present case, the Magistrate had no such materials on which he seemed to act or from which he had good reasons to be satisfied that there was a dispute likely to cause breach of the peace.
7. 'Madan Mohan Lal v. Mt. Sheoraj Kunwar' AIR 1932 All 448 (B), is a decision by Boys, J. the principle of which has been accepted in - 'Barmha Singh v. Emperor' AIR 1932 All 681 (O), wherein it has been held that by a breach of the mandatory provision namely, to record the grounds of the Magistrate being so satisfied in his order passed under Section 145(1) Cr. P. C., the Magistrate does not lose jurisdiction and the whole trial is not vitiated thereby, unless the omission by the Magistrate to state his grounds for being satisfied that there was a likelihood of a breach of the peace has in fact occasioned a failure of justice. In - 'Kapoor Chand v. Suraj Prasad' AIR 1933 All 264 (D), there is the Full Bench decision to the same effect. 'Wazir Mahton v. Badri Mahton' : AIR1950Pat372 is a single Judge's decision in line with the Allahabad decisions referred to above. As a matter of fact, in all these cases, there appeared to be some materials on which the Magistrates could not only be justified in forming an impression that the likelihood of the breach of the peace existed taut that there appeared to be compelling reasons to believe in the existence of such a dispute and this line of cases can be distinguished on this aspect from the present one where there was no other material except the police report to which I have already referred.
8. The learned Advocate for the second party has relied mainly on - 'Rai Radha Gobind Rai Saheb Bahadur v. Gossain Mohendra Gir', 6 Cal W N 340 (P) and - 'Maharaj Bahadur Singh v. Raja Ranjit Singh Bahadur', 11 Cal W N 835 (G). The case in - '11 Cal W N 835 (G)' fits in with the present set of facts and I quite agree with the view expressed by the learned Judges in that case and am inclined to hold that there was no proper material on which the Magistrate could have drawn up the preliminary order under Section 145(1), Cr. P. c., he having once refused to act on the complaint petition which led to this calling a police report about which I have already discussed. I need not refer to other decisions relied on by the learned Advocate in support of his contention
9. In - 'Bibi Asghari Khanam v. Emperor' AIR 1935 Oudh 316 (H), King C. J. one of the Judges in the Full Bench decision reported in - 'AIR 1933 All 264 (D)' while delivering his judgment as a third Judge because of the difference in view between Srivastava J. and Nanavutty J. in a matter under Section 145, Cr. P. C, concludes his judgment as follows:
I would not have the Magistrate to understand that defects in procedure are of no importance; slipshod procedure is to be condemned even though it does not necessarily result in vitiating the whole proceeding.
10. In the present case, the Magistrate who started the proceeding has we understand retired, but the Magistrate who passed the final order under Section 145(6), Cr. P. C. should also bear in mind that he is not to work as an arbitrator or have any consultation with the police with regard to delivery of possession as appears from the record in this case. The orders, by themselves, should be clear so that it can be carried out without any personal contact with the Magistrate himself. I have already indicated my view as to the merits of the reference and in my opinion, the reference should be accepted.
Ram Labhaya, J.
11. I agree to the order proposed by my learned brother as a short ground. Though mere non-compliance with the requirements of Section 145(1) in the absence of any suggestion of a failure of justice having been occasioned thereby is a curable irregularity, in this case there has been a failure of justice. The final order is opposed to the case set up by either party. It was nobody's case that part of the land was in the possession of one party and part in that of the other. It is possible that both sides exaggerated their claim but there is no evidence to support the order directing the plot in dispute to be divided into two parts. The Magistrate evidently was influenced by the view he formed on the occasion of his spot inspection. Local inspection is permissible under Section 539B, Cr. P. C. for appreciating evidence. It is no substitute for legal evidence, vide - 'Ram Sahai Singh v. Dwarka Singh' AIR 1920 Pat 749 (I) nor can any findings be based on the result of local inspection, vide - 'Abdul Hamid v. Hasan Raza AIR 1923 Pat 366 (J). The order in these circumstances has no valid basis and ought to be set aside.