1. The only question that arises for consideration in this case is whether the Munsif-Magistrate, Wanaparthy, acted without jurisdiction in pitting his final order under Section 145 Cr. P. C. even though there was no preliminary order passed under Section 145(1) Cr. P. C.
2. The proceedings were initiated in the Court of the Executive Magistrate, Narayanpet, on the report of the police, Devarakadra which was made at the instance of the first-party, respondent herein. As soon as that report was received, a clerk in the office of the Revenue Divisional Officer (Executive Magistrate), Narayanpet, submitted a note on 3-11-1960, which is to the following effect:
'Sir, F. I. R. No. 39/60 issued by the Sub-Inspector (of police) Devarakadra, may kindly be perused. Today he has submitted the charge-sheet No. 18/60 under Section 145 Cr. P. C. in which (the) sworn statement of the Sub Inspector is to be recorded by the Executive Magistrate. The report submitted by the Sub Inspector reveals that there is a dispute between (the) two parties for possession of Survey No. 87 situate at Gorakonda village, Atmakur, and there is likelihood of breach of peace and further, the report reveals that the land in dispute may be taken under Government custody till the disposal of the case. If pleased, suitable date may be fixed (for) obtaining the statement of the Sub Inspector and he may be informed about the dale.'
This report was signed by the clerk. An endorsement was made thereon by the Head Clerk which is as follows:
'Necessary date may be fixed for recording the statement of (the) Sub Inspector.'
That endorsement bears signature of the Head Clerk with the date 3-11-1960. Thereunder the Magistrate had endorsed 'Yes', with his initial and date 16-11-60.
3. It appears from the notes of the Clerk himself that thereafter 24-11-1960 was fixed as the date for recording the statement of the Sub Inspector of Police. This endorsement is dated 16-11-1960. Again on 24-11-1960, the same clerk made an entry on the docket-sheet that the statement of the Sub Inspector was recorded and notices have also been issued to the parties and the case was posted to 10-12-1960 for appearance. This entry on the docket sheet is not supported by any written order of the Magistrate except to the extent that the Magistrate himself had recorded the statement of the Sub inspector on that day. After recording the statement the Magistrate of course could pass an order; but there is no order in writing by the Magistrate to issue such notice.
It is significant that even the notices which were issued on 24-11-1960 stating that there is tension between the parties; that there appears to be likelihood of breach of peace due to the dispute and that, therefore, it is ordered that the parties should appear in the court and put in written statements of their respective claims, does not bear the signature of the Magistrate himself. They were issued under the signature of the Head Clerk for the Magistrate. Thus it is clear that except that the Magistrate had taken down the statement of the Sub-Inspector on 24-11-1960, he has done nothing in the proceedings initiated at the instance of the Police. It is the clerk who made the report and the Head Clerk endorsed that a date may be fixed for recording the statement of the Sub Inspector and the Magistrate merely stated 'Yes' and thereafter he did not choose to comply with the provisions of Section 145 Cr, P. C. Sub-Section CD of Section 145 Cr. P. C. reads thus:
''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 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 the dispute and further requiring them to put in such documents, or to adduce, by pulling in affidavits, the evidence of such persons, as they rely upon in support of such claims.'
It was the bounden duty of the Magistrate to make an order in writing himself, stating the grounds of his being satisfied that there exists likelihood of breach of the peace and requiring the panics concerned to enter their appearance within a time fixed and put in their written statements in support of the fact of actual possession. We look in vain for any such formal order in writing made by the Magistrate in the file containing the proceedings of the case before the Executive Magistrate. It is obvious that he made no order in writing. It was the Clerk who had issued the notices under the signature of the Head Clerk without obtaining any orders of the Magistrate in writing. Certainly the functions under Section 145 Cr. P. C. are judicial and cannot be entrusted to any agent of the Magistrate. It is the duty of the Magistrate functioning as such to discharge the functions himself.
But the learned Magistrate, curiously enough, did not choose to look into the provisions and see that no further proceedings could lake place unless an order in writing as contemplated by Section (45)(1) was made by him and that it is he who should be satisfied and that this act of satisfaction cannot be delegated to the clerk or the Head Clerk. When the case was transferred to the judicial magistrate through the District Magistrate without any such preliminary order on record in writing by the Executive Magistrate, the Munsif-Magistrate of Wanaparthy found some other defects in the proceedings to which reference has been made in paragraph 3 of his order and he sought to rectify the same. One of the drawbacks mentioned therein relates to the proclamation to be published as required by Sub-Section (3) of Section 145 Cr. P. C. The said Sub-section reads thus:
'A copy of the order shall be served in manner provided by this Code for the service of a summons 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 at or near the subject of dispute.'
The learned Munsif-Magistrate seems to have been under an erroneous impression that the notice which purports to be signed for the Executive Magistrate was in fact signed by him or at least it was issued in pursuance of an order made by the Magistrate in writing and as such he thought that by publication thereof by affixture at some conspicuous place of the subject-matter of dispute the defect in the proceeding could be cured and he acted accordingly. But, as already noticed, the Executive Magistrate made no order at all. Thus the proceedings started before the Judicial Magistrate with a serious defect of complete absence of preliminary order in the case. The parties do not appear to have raised any objection in relation thereto till the proceedings had terminated in a declaration that the first party was in possession and that his possession shall be maintained. The second party has however come to this Court invoking the revisional jurisdiction after it has failed to move the Sessions Court in this behalf.
4. The point raised is that in the absence of a preliminary order, all the proceedings under Section 145 which were continued by the Judicial Magistrate become vitiated and the final order therefore must be set aside.
5. In support of this contention the learned counsel relied on a series of cases of the Madras High Court, which have clearly laid down that if there is no formal preliminary order made in writing, the proceedings taken thereafter become vitiated and hence are null and void. The first case to which my attention is invited is Subbarama Aiyar v. Mariya Pillai, AIR 1914 Mad 78 at p. 81. It was a case where there was no order purporting to be passed under Section 145(1), or which by any stretch of reasoning may be treated as having been passed under that section. The notice to parties issued in that case could not by itself constitute such an order. It was also clear that at the time he issued it even the Magistrate did not consider himself to be acting under Section 145 at all. There was not a single subsequent order on record, which could possibly be referred to Clause (1) of Section 145. Ayling, J., in these circumstances held that the whole proceedings under Section 145 Cr. P. C. were illegal for want of jurisdiction.
Reference was made to Kamal Kutty v. Udayavarma Raja, ILR 36 Mad 275: 17 Ind Cas 65 which was decided by a Division Bench of that court to which the learned Judge was also a party, wherein it was held that of course a mere omission to set forth in the body of the order the reasons which satisfied the Magistrate is an irregularity which will not affect jurisdiction of the Magistrate but there must indeed be a formal order.
The second case cited (i.e.) Subbarama Aiyar Case. AIR 1914 Mad 78 at p. 81 is indeed an authority for the proposition that if any proceedings are started without there being a formal preliminary order on record, those proceedings will be null and void and the final order would, therefore, suffer from the same infirmity. But, if on the other hand, there is some order, but it is defective in form, that by itself would not vitiate the proceedings.
6. The next case cited is Mariasusai Udayan v. Mahamud Azzeezudeen Sahib, AIR 1936 Mad 824 wherein Burn J., observed that unless there is a preliminary order under Section 145(1) the Magistrate has no jurisdiction to pass any order under Section 145(6) and if he passed any final order it would be without jurisdiction and would not be validated simply because the opposite party does not object to it. In Pakamaraja Naicker v. Chidambara Nadar, : AIR1955Mad229 which was decided on 11-9-1953, Balakrishna Aiyar, J., after referring to the various decisions on the subject, specially to Mariasusai Udayan case, AIR 1936 Mad 824 observed thus:
'The omission to issue an order under Section 145(1) vitiates the entire proceedings of the Magistrate. Under Section 145 the Magistrate has in determine who was in possession on a particular date and that date is the date of the order under Section 145(1) and if there is no order under Section 145(1) there will be no date with reference to which the question of possession can be determined.'
The learned Judge referred in that judgment to Madan Mohan Lal y. Sheoraj Kunwar, AIR 1932 All 446 the proposition that absence of a formal order is a mere irregularity and unless prejudice has resulted, the proceedings will not be vitiated. He referred to the rulings of the other High Courts also but concluded that the Madras High Court has been consistent in the view that omission to make a preliminary order is fatal to the proceedings.
7. The learned counsel for the respondent referred me to a judgment of the Madras High Court in Swaminatha Pillai v. Raghavachariar AIR 1947 Mad 161 as a case supporting his contention. It related to a case where after the proceedings under Section 144 Cr. P. C. were initiated and a preliminary order passed thereunder was rescinded, proceedings under Section 145 were started on that very day, but they did not contain any statement to the effect that there was a dispute about the properties which was likely to cause a breach of the peace. Having regard to the circumstances of that case the learned Judge came to the conclusion that since there were materials before the Magistrate, who made enquiry under Section 145 and directed the lands to be put in possession of the party who was declared to be in possession, to indicate that breach of the peace was likely omission to make mention of those materials in the order itself is a mere irregularity in the procedure and it was not fatal to the proceedings and was not a ground for interfering in revision. 'This decision does not make any reference to the previous decision in Subbarama Aiyar Case, AIR 1914 Mad 78 at p. 81.
However, this decision does not help the contention of the respondents. It shows only that if theorder does not contain all the materials before the Magistrate, in other words, if the order made is defective, that will not be fatal to the proceedings. It must be remembered that in that case there was an order on the basis of which the proceedings under Section 145 were started, but it did not contain the necessary details. In the next case relied on viz., Lingayya v. Nagayya, 1932 MWN 320 there is in deed an observation in the judgment favourable to the Respondent, in that it was stated that had the absence of a preliminary order initiating the proceedings been the only complaint, the learned Judge would have proceeded to consider whether its absence had prejudiced the petitioner. But it would appear from the judgment itself that there was in fact an order made in that case. But there was some tampering with the same so far as dates are concerned.
8. Thus the view taken by the Madras High Court in : AIR1955Mad229 seems to be consistent with the well-settled view of that court which is to the effect that if there is no preliminary order made at all, the subsequent proceedings culminating in the final order are vitiated; but, on the other hand, if there is a preliminary order, however defective It may be, the defect would not be fatal unless it has resulted in prejudice.
9. Now we have to see whether the instant case is a case where there is a total absence of a formal preliminary order. As already noticed, there is no order in writing of any kind of the Executive Magistrate, purporting to have been made under Section 145(1). All that we find is that there is a notice signed by the Head Clerk for the Magistrate and that notice though contains the requisite essentials of an order made under Section 145(1) is not an order made by the Magistrate. The law does not attach any value to an order made by a person other than the Magistrate himself. It follows, therefore, that the notice referred to cannot be deemed to be an order under Section 145(1).
10. Of course, when the case was made over to the Judicial Magistrate, the Judicial Magistrate, as would appear from his order, sought to rectify the defects in the proceedings and for that purpose he not only took steps for bringing on record the legal representatives but also sought to effect service on the parties personally and also by affixture at the land in question of an order purporting to have been made for the Magistrate. The action thus taken did not fill up the lacuna of absence of a formal order. Obviously enough he himself did not make any order. Mere communication of the order, though there was no such order as contemplated by Section 145(1) at all, would not make it an order under Section 145(1) made by the judicial magistrate. That being the case, it is obvious that the proceedings were started without any formal preliminary order by any Magistrate. If that be the case, in view of the rulings cited above, the proceedings started thereafter culminating in the final order become vitiated. In this premises, whether any prejudice was caused or not will not be a matter for consideration, as the irregularity is grave enough going to the root of jurisdiction and amounts to an illegality. The order of the Magistrate, therefore, is liable to be set aside.
11. In the result, the revision is allowed, the order of the Judicial Magistrate is set aside and the proceedings are quashed. Having regard to long lapse of time, no orders for re-enquiry are necessary.