Ram Labhaya, J.
1. This is a reference under Section 438 of the Code of Criminal Procedure from the Court of the Sessions Judge, L.A.D. The reference arises out of a proceeding under Section 145, Cr. P. C. The facts leading to the reference may briefly be stated.
2. On 22-1-53, Rameswar Goenka, the first party, petitioned (Ex. 7) to the Officer-in-Charge, Shillong Police Station, alleging that holding No. 122 an south-east Mowkher Ward of the Shillong Municipality, then in occupation of the Tip Top Hotel, belonged to him, and that the second party, Durga Prasad Goenka, who was the owner of the adjoining holding to its north-west, was taking forcible possession of a portion of land out of the said holding No. 122, by cutting earth thereform and by removing all boundary marks between the two holdings, in spite of the first party's protest.
He asserted that if the encroachment went on, there was danger of a breach of the peace. The Officer-in-Charge directed a Sub-Inspector to enquire into the matter under Section 145, Cr. P. C. The Sub-Inspector reported on 28-1-53 that the parties had already settled the matter amicably between themselves. On this report, the matter was dropped.
3. On 19-3-53, the first party put in another application under Section 145, Cr. P. C. in the Court of the Additional District Magistrate, Shillong. He alleged that he was the owner of holding No. 122, and that the second party who was his father's brother's son, had started encroaching on the land sometime in January, 1953. He had lodged an information at the Shillong Police Station on 22-1-53. After that the second party desisted from acts of encroachment for some time, but again, in the second week of February, 1953, he commenced taking the law into his own hands by cutting earth from the petitioner's compound. He stated that he was waiting for some action by the Police, but as they had not moved in the matter, a second petition in Court became necessary.
4. The learned Additional District Magistrate, on receiving this petition, passed his order, dated a9-3-53, in the following terms :
'To O/C, Shillong Police Station, for immediate enquiry and report. In case of emergency, the land in dispute may be attached. Issue order of attachment.'
An attachment order was sent in pursuance of this order to the Officer-in-Charge, Shillong Police Station. On 30-3-53, the Officer-in-charge of the Police Station submitted a report to the Additional District Magistrate, Shillong, stating that the land in dispute had been attached in pursuance of the order, dated 19-3-53. He further submitted a proceeding under Section 145, Cr. P. C., finding that there was an apprehension of a breach of the peace.
It was also stated that the first party Rameswar Goenka having reported about the encroachment
on the land again by the second party, Durga Prasad Goenka, by putting C. I. sheets on the roof, he had visited the locality and had asked the second party to remove the C. I. sheets, which the second party admitted to have fixed through mistake. He requested the Additional District Magistrate to depute one Sub Deputy Collector to survey the disputed plot and to fix up the boundaries between the two holdings. On receipt of this report, the Additional District Magistrate transferred the case to the Senior Extra Assistant Commissioner, Shillong, for disposal. On 30-3-53, the Senior E. A. C. passed an order to the following effect:
'Case received on transfer. The land has already been attached under the A. D. M.'s order. Parties will now file written statement regarding possession. Seen Police Report, dated 30-3-53, regarding violation of the attachment order by the second party. Ask them to show cause why he should not be prosecuted under Section 188, I. P. C. and direct him not to commit further breach of the attachment order. Also please request Mr. Roy, S. D. C., to demarcate the land on the basis of the record. Fix 17-4-54.'
5. The parties submitted their written statements. Five witnesses were examined on behalf of the first party, and four on behalf of the second party. Some talk about compromise proved abortive. The learned Magistrate ultimately found that the first party was in possession of the disputed portion of the holding in question, and declared 'him entitled to remain in possession thereof until evicted therefrom in due course of law. He also held that the first party was entitled to restoration of possession of the disputed land, and issued a direction to that effect.
6. The learned Sessions Judge has recommended that no proper order directing the drawing up of a proceeding under Section 145, Cr. P. C. was passed. He expressed the opinion that the learned A. D. M. had not applied his mind to the question as to whether there was a likelihood of a breach of the peace or not, and that he did not purport to draw up a proceeding under Section 145, Cr. P. C. He did not regard the order, dated 19-3-53, as one initiating a formal proceeding under Section 145, Cr. P. C., and this omission to initiate a formal proceeding was found not curable even on the basis of the subsequent attachment order. He also pointed out that the first party had not attempted to define the exact area which was in dispute between the parties, and, in any case, some encroachment had occurred in January, 1953. Any order about this land could not be legally passed as this part of the encroachment had occurred more than two months before the proceeding was drawn up.
7. The requirement of Section 145, Clause (1), Cr. P. C. is that a District Magistrate or Sub Divisional Magistrate or Magistrate of the first class must be 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, and, if so satisfied, he should 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 the Magistrate, and to put in written statements 'of their respective claims as respects the fact of actual possession of the subject of dispute.
Obviously, two things are necessary: there should be a dispute relating to land or water; and it should be likely to cause a breach of the peace. A Magistrate passing an order under Section 145 Cr. P. C. should be satisfied about the existence of such a
dispute and should state the grounds of his being so satisfied. The orders which have been passed in this case do not strictly comply with the directions contained in Section 145, Cr. P. C. The first order passed was on 19-3-53 when the complaint was tiled. The learned Magistrate could pass that order on receiving the complaint without obtaining any report from the Police or without making any preliminary enquiry.
He did not even record the statement of the complainant, but even this omission would not make his order illegal. The language of the section leaves wide discretion to the Court. The Magistrate concerned may feel satisfied about the existence of a dispute likely to cause a breach of the peace from a Police report or other information. What is necessary is that the Magistrate should make an order in writing, giving reason for his satisfaction that a dispute about some land or water likely to cause a breach of the peace existed. All that the learned Magistrate did in this case was to ask the Officer-in-Charge to proceed to enquire into the matter and report, and, in case of emergency, to attach the land. An attachment order was sent also.
8. Mr. Lahiri has argued that though he has not stated in express terms that there was a dispute likely to cause a breach of the peace, he was convinced of this fact. He reads in his order a necessary implication of his belief or satisfaction about the likelihood of a breach of the peace. He points out that it was not merely a case of likelihood of a breach of the peace; the learned Magistrate seemed to be thinking in terms of an emergency and actually authorised attachment of the disputed land by the issue of an order. His belief that there was a likelihood of a breach of the peace would necessarily follow from the order.
Even if the order is interpreted in that sense,
it still would not satisfy the requirements of Section 145,
Cr. P. C. because we do not discover anything in
the order which brings out how the Magistrate was
satisfied about the existence of a dispute likely to
cause a breach of the peace. Mr. Lahiris answer is
that the Magistrate had the complaint before him
and also the fact that a previous report had been
made to the Police, and if these factors induced the
necessary belief, the action of the Magistrate would
be legal. He, however, could not say that even this
would amount to a strict compliance with the requirements of law. The grounds have to be expressly
stated, they have not to be gathered from the circumstances of the case.
9. The next order in the case was passed on 30-3-53. The Additional District Magistrate transferred the case to the Court of the Senior Extra Assistant Commissioner. The order of transfer cannot, by any stretch of imagination, be regarded as an order drawing up proceedings under Section 145, Cr. P.C. On the same day the Senior Extra Assistant Commissioner passed an order. He directed the parties to file written statements. A Police report regarding violation of the attachment order was considered. Notice was issued on the second party to show cause why he should not be prosecuted and demarcation of the land in dispute was also ordered.
Mr. Lahiri has relied on this order also in the alternative for showing that the procedure followed by the learned Magistrate was not illegal or in defiance of the provisions of Section 145, Cr. P. C. Even here the same difficulty exists. He has to rely on the implications of the order. The learned Magistrate considered the proceeding submitted by the Police on the ground that the dispute was likely to result in a breach of the peace. He ordered the parties to put in written statements. These written statements under Section 145, Cr. P. C. may be called for only it the Magistrate feels satisfied about the existence of a dispute likely to cause a breach of the peace.
Mr. Lahiri argues that there was satisfaction on the part of the Magistrate, and written statements were accordingly demanded. There was an attachment order and other directions, which clearly showed that there was no doubt in the mind of the Magistrate about the dispute and also of the likelihood of a breach of the peace. These facts are there no doubt, but even so, the order did not, in terms, comply with the requirements of Section 145, Cr. P. C. The learned Sessions Judge, therefore, was right in the view that no proper or valid preliminary order directing the drawing up of the proceeding was passed at any stage of the proceedings.
10. The next question is--whether this omission to comply strictly with the requirements of Section 145, Cr. P. C. is fatal to the proceedings, by itself Section 537, Cr. P. C. provides that subject to the provisions contained in the Act, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during that or in any inquiry or other proceedings under the Code, unless such error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice.
It has, therefore, to be seen whether failure of justice has, in fact, occurred by reason of the irregularity complained of. Without a finding to that effect, the mere contravention of the provisions of Section 145(1), Cr. P. C. would not justify setting aside the order. Even irregularities in a charge may be cured under Section 537, Cr. P. C, if failure of justice, in fact, has not occurred. This is an important aspect of the matter. The learned Sessions Judge has not come to the conclusion that there has been any miscarriage or failure of justice.
He has not gone into the facts of the case. He
formed his view from the orders of the learned
Magistrate that he had not applied his mind to the
question whether a dispute likely to cause a 'breach
of the peace existed or not. The two orders, however,
do indicate that there was, in the view of the Magistrate, a valid basis for taking action under Section
145, Cr. P. C. though he failed to state it explicitly.
The irregularity complained of does not affect the
jurisdiction, nor has it affected the merits of the case.
Some five witnesses were examined on one side
and four on the other.
Evidence was led as to the actual possession of a plot which was in dispute. The learned Magistrate has come to a finding on the question of fact, and unless an erroneous finding has been induced on that point by the irregularity complained of, there cannot be any justification for quashing the proceedings. The evidence was not considered or discussed by the learned Sessions Judge, and in the absence of any suggestion of a probable failure of justice, the final order cannot be set aside in view of the provisions contained in Section 537, Cr. P. C.
11. The learned Judge has also expressed the view that the land in dispute was not defined by the complainant in his complaint petition. This is correct. But later on, in order to comply with the order passed by the learned Magistrate on 19-3-53, the Police Officer found it necessary to attach the land in dispute. The attachment and the Police report both show that it was believed that there was danger or likelihood of a breach of the peace. The
land was attached in the presence of the parties. The land in dispute was thus ascertained; the area was specified; it was attached; the boundaries of the attached area are given in the report of the Police Officer.
Therefore, when written statements were put in, there was no indefiniteness about the area that was in dispute. The parties led evidence with respect to the land in dispute. Both claimed possession thereof, and the final order that was passed was with respect to this land. The omission to define the land by boundaries in the complaint petition, therefore, does not introduce any uncertainty or indefiniteness in the proceeding.
12. The last point which influenced the learned Sessions Judge in making his recommendation, was that the encroachment, at least that which occurred in January, 1953, was not within two months of the date of any order, that could be regarded as preliminary. He took the first application made to the Police into consideration. The evidence is that on the report made to the Police, no action was taken. The second application was put in February.
The first order was on 19-3-53. The second order was passed on 30-3-53. Whatever order is taken as initiating the proceeding under Section 145, Cr. P. C., the bar of limitation or any difficulty under the proviso to Section 145 (4), Cr. P. C., does not arise. The encroachment or dispossession occurred within two months of the order, dated 30th March, 1953. There was not dispossession before the complaint made to the Additional District Magistrate, considering that the earlier dispute had been settled amicably between the parties after the first report to the Police.
13. We notice that though the learned Magistrate of the trial Court committed irregularities in initiating the proceeding, in the absence of any basis for a finding that a failure of justice has occurred, we do not find our way to accept the recommendation made by the learned Sessions Judge. The reference is accordingly rejected.
H. Deka, J.
14. I agree with my learned brother.
15. This is a reference where we need not interfere because it seems that the trouble started with an attempted dispossession by the second party, and the finding, as such, is to the effect that the second party was the trespasser. The proper remedy being in a Civil Court for final results, we do not feel called upon to interfere unless it is apparent, on the face of the record, that the second party has been seriously prejudiced. That does not appear to be the case here. On the other hand, I cannot but notice that the defect in procedure followed, particularly by the Additional District Magistrate and the Magistrates who succeeded, was of a very serious nature to the extent that none of them came to a definite finding that there was a likelihood of a breach of the peace, which is one of the material conditions for drawing up a proceeding under Section 145, Cr. P. C.
15a. In the facts and circumstances of this case I do not feel called upon to touch the other points or reference as they have been adequately dealt with by my learned brother.
16. I agree that the reference be rejected.