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Debi Prasad Vs. Sheodat Rai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported in(1908)ILR30All41
AppellantDebi Prasad
RespondentSheodat Rai
Excerpt:
.....act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - in the present case, however, i am quite satisfied that there was a dispute about land; section 537 of the code of criminal procedure expressly provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity, unless such irregularity has in fact occasioned a failure of justice......should be taken under section 107 and also under section 145. on the 17th of september 1906 the deputy magistrate issued notices to the parties under section 107 to show cause why tie parties should not be bound over to keep the peace. on the 5th of october 1906 the case came on, and the court, finding that the dispute was really a dispute about land, ordered the proceedings to come on under section 145. statements had been put in by both parties in the proceedings under section 107. the parties attended in court, the patwari was examined, and the court finding that the opposite party had proved their possession, made an order providing for the possession of the opposite party. of course the order of the magistrate is made without reference to the merits of the claim of either of the.....
Judgment:

Richards, J.

1. This was an application to revise an order made under Section 145 of the Code of Criminal Procedure. It would appear that the matter originated by a police report that there was likely to be a breach of the peace between two brothers owing to a dispute about land and asking that proceedings should be taken under Section 107 and also under Section 145. On the 17th of September 1906 the Deputy Magistrate issued notices to the parties under Section 107 to show cause why tie parties should not be bound over to keep the peace. On the 5th of October 1906 the case came on, and the Court, finding that the dispute was really a dispute about land, ordered the proceedings to come on under Section 145. Statements had been put in by both parties in the proceedings under Section 107. The parties attended in Court, the patwari was examined, and the Court finding that the opposite party had proved their possession, made an order providing for the possession of the opposite party. Of course the order of the Magistrate is made without reference to the merits of the claim of either of the parties, and they are entitled to take such proceedings as they think right to have their real title ascertained and declared. The object of the section is merely to prevent a breach of the peace by maintaining one or other of the parties in the possession which the Court finds they had immediately before the dispute. In the present case the provisions of Section 145 were not strictly complied with. The parties being in Court and the order being made in their presence the Court did not direct that they should be served personally. No notice of the order was fixed to any place at or near the subject of dispute. It certainly would be well that all Magistrates proceeding under Section 145 should in all eases strictly comply with the various provisions of the section, and if I could find that the applicants here had been in the smallest way prejudiced by any omission to comply with the provisions of the section, I should feel bound to set aside the order complained of. Orders made by the Magistrates are not under ordinary circumstances liable to be revised by the High Court. There is an express provision in Section 435 of the Code of Criminal Procedure that the Court cannot under that section deal with proceedings under chapter XII (in which Section 145 is included). It has, however, been held in Criminal Reference No. 189 of 1903, that the High Court can under certain circumstances interfere with orders purporting to be made under Section 145, and this ruling was followed and to some extent extended in the case of T.A. Martin (1904) I.L.R. 27 All. 296. The facts in Criminal Reference No. 189 of 1903 are somewhat similar to the facts in the present case, and, as I have already said, whatever my individual view of the provisions of Section 435 might be, I should follow that ruling and set aside the order if I found that the applicant had been in any way prejudiced by the order. In the present case, however, I am quite satisfied that there was a dispute about land; that there was an apprehension of a breach of peace arising out of this dispute about land, and I find also that the parties interested in the dispute appeared and had their case fully heard before the Deputy Magistrate. The order he made is dated the 18th of February 1907, and the present application was not filed until the 18th of May following. It also appears that it took 13 days to get a copy of the judgment; but, even allowing for this time, a very considerable period was allowed to elapse before any steps were taken to set aside the order of the Deputy Magistrate. All the provisions of Section 145 which were not complied with are provisions enacted for the purpose of enabling both parties to the dispute to have their respective cases fully heard by the Court after due notice. In the present case the parties had notice and had their respective oases fully heard, and the learned Counsel for the applicant admits that he is unable to point out, or even suggest, any injury suffered by his clients due to the non-compliance with the provisions of the section. Section 537 of the Code of Criminal Procedure expressly provides that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity, unless such irregularity has in fact occasioned a failure of justice. I think it would be an extremely technical reading of this section to hold that the order passed by the learned Deputy Magistrate was not an order of a Court of competent jurisdiction merely because there were irregularities in part of the procedure causing no injury to either party. Under any circumstance it is a matter entirely in the discretion of this Court whether or not it will in revision set aside an order, and in exercise of this discretion I refuse in the present case to set aside the order. With 'the consent of both parties 1 make an express direction that the order of the Magistrate shall be deemed to apply only to plot No. 58. Inasmuch as I consider that it is of the greatest importance that Magistrates should strictly comply with the provisions of the Code, I direct that a copy of this judgment be sent to the Deputy Magistrate who tried the case. The application is rejected.


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