M.P. Saxena, J.
1. This is a revision application under Section 397 of the Criminal Procedure Code, 1973, against the order dated 4-10-1974 passed by the learned Second Additional Sessions Judge. Azamgarh.
2. Briefly stated the facts giving rise to this revision application are that plots Nos. 284/1 (1 acre 427 Karis) and 284/2 (560 Karis) are situate in village Sekhwalia P. S. Ahraula, District Azamgarh. On account of dispute over these plots between Haribanshlal and Udai Bhan, first party, and Sukhdeo Yadav, second party, reasonable apprehension of breach of peace existed. Therefore, on 2-9-1672 the Station Officer, Ahraula submitted a report that necessary action under Section 145, Criminal Procedure Code be taken. The property in dispute Hea within the jurisdiction of S. D. M. Sadar but the said report was somehow put up before. Sri Ram Saran Varshney, Sub-Divisional Magistrate, Phulpur, Magistrate First Class, Azamgarh, who passed the following preliminary order on the same day:
Initiate proceedings under Section 145, Criminal Procedure Code.
No order of interim attachment was made in the preliminary order which was sent to S. O. Ahraula for service on both the parties. The portion of the pro forma of the preliminary order which contained directions for affixation of the copy to some conspicuous place at or near the place of dispute was deleted although Srinath and Gorakhnath, interested in the subject of dispute, joined the proceedings at a later stage by filing their written statements as third party but it is evident from the record that service of the preliminary order was not effected in the manner prescribed by the provisions of Section 145(3) of the Criminal Procedure Code, 1898. The record further shows that the S. D. M. Phulpur, having passed the preliminary order, directed on 9-10-1972 that the proceeding be transferred to the court of the S. D. M. Sadar within whose jurisdiction the property in dispute is situate. Accordingly the proceedings were transferred to the court of the S. D. M. Sadar before whom the parties filed their written statements. On 10-5-1974 the learned S. D. M. Sadar held that from the material on record Sukhdeo Yadav, the second party, appeared to be in possession of the disputed plots on the date of the preliminary order and within two months before it. He, therefore, issued an order declaring Sri Sukhdeo Yadav to remain in possession of the property until evicted therefrom in due course of law and forbidding all disturbances of his possession until such eviction.
3. The first party preferred a revision before the learned Sessions Judge, Azamgarh, challenging the order of the S. D. M. Sadar, inter alia, on the grounds that the preliminary order which was the basis of the proceedings was passed by the S. D. M. Phulpur who had no jurisdiction and, as such, the entire proceedings were vitiated for want of jurisdiction and, secondly, that the mandatory provision of Section 145(3) of the Criminal Procedure Code, 1898, was not complied with and on this score also the order of the S. D. M. was bad in law. II was further alleged that there was no material on the record on the basis of which the S. D. M. Sadar could have based his satisfaction that there existed or continued to exist apprehension of breach of the peace. Therefore, he should have dropped the proceedings and, in any case, his findings about possession were based on wrong appraisal of evidence.
4. The learned Second Additional Sessions Judge, Azamgarh, who heard the revision application relied on the case of Tara Singh v. Maheshwari Dutt 1972 All Cri C 304 and held that the S. D. M., Phulpur, had no jurisdiction to deal with the disputes relating to immovable property lying beyond his jurisdiction. The order passed by him was void ab initio and the subsequent proceedings in the case by S. D. M., Sadar were also a nullity. According to him the defect of jurisdiction could not be cured under Section 537, Criminal P. C. As regards the second point, he held that in view of the case of Ram Charan v. State 1969 All Cr R 503 non-compliance of the provisions of Section 145(3), Criminal Procedure Code is not a curable irregularity. Accordingly without going into the merits of the case he quashed the order passed by the S. D. M., Sadar and directed that the record be sent back to him for starting the proceedings afresh if he felt satisfied that there still existed apprehension of breach of peace.
5. Sukhdeo Yadav, the second party, has now come up in revision challenging the findings of the learned Second Additional Sessions Judge on both the points.
6. This revision at first came up for hearing before a learned Single Judge of this Court but on account of conflict of decisions on the point of jurisdiction the entire revision was referred to a larger Bench for disposal. This is how it has come up before us.
7. It may be stated here that for purposes of this revision it is not at all necessary to go into the merits of the question of jurisdiction because the revision can be disposed of on another point. Even if a Sub-Divisional Magistrate has no jurisdiction to pass orders in respect of immovable property situate beyond sub-division, the crucial point for consideration is whether such an order vitiates the entire proceedings. The learned Counsel for the opposite party has referred to Section 530(J) of the Criminal Procedure Code, 1898 to show that if a Magistrate having no jurisdiction to pass order under Section 145, Criminal Procedure Code passes an order it will be void. Reliance has also been placed on the case of Tara Singh v. Maheshwari Dutt (1972 All Cri C 304) (supra).
8. We have given our anxious consideration to the whole matter and in our judgment Section 531 of the Code sets at rest the entire controversy. It says:
No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceeding in the course of which it was arrived at or passed, took place in a wrong sessions division district, subdivision or other local area unless it appears that such error has, in fact, occasioned failure of justice.
The policy of this Code as shown by Section 531 (now Section 462 of the new Code) is to uphold in most cases orders passed by a criminal court which was lacking in local jurisdiction or which has committed illegalities or irregularities, unless failure of justice has been occasioned or is likely to be occasioned through such want of jurisdiction or such illegalities or irregularities. In the instant case the S. D. M. Phulpur did not pass any such order which could prejudice any one. Feeling satisfied from the report of the Station Officer that there existed reasonable apprehension of breach of peace he simply passed an order that proceedings under Section 145, Criminal Procedure Code be initiated. He did not even attach the property in dispute. The applicant did not allege before the S. D. M., Sadar or before the learned Second Additional Sessions Judge that he was in any manner prejudiced by the said order or that it had resulted in failure of justice. Even before us he has not been able to substantiate it. Hence, there is no scope for the argument that the order passed by the S. D. M., Phulpur has occasioned failure of justice and the entire proceedings are bad on that account. That such defect in the exercise of jurisdiction is not fatal unless it has resulted in the failure of justice will be clear from several cases. In Ram Chandra Prasad v. State of Bihar : 1961CriLJ811 the accused was challaned before the magistrate of Dhantaad for an offence under Section 161, Indian Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947. The offence was committed at Dhanbad in the Manbhum District. On an application by the accused the High Court transferred it to the court of the Munsif-Magistrate at Patna. Subsequent to the order of transfer the Criminal Law (Amendment) Act, 1952 came into force. The case thereafter was forwarded to the Special Judge at Patna in view of Section 10 of the Criminal Law (Amendment) Act. The accused was tried by a Special Judge of Patna and convicted. In appeal against the conviction the contention for the accused was that there was a special Judge at Manbhum and that he alone could have tried the case. Their Lordships of the Supreme Court held that in view of Section 531 of the Code of Criminal Procedure the order of the Special Judge, Patna convicting the accused cannot be quashed merely on the ground that he had no territorial jurisdiction to try the case when no failure of justice had actually taken place.
9. Again in Mangal Das Raghavji v. State of Maharashtra : 1966CriLJ106 an accused was tried at a wrong place. He was not found to have been prejudiced thereby. The question arose whether the trial was vitiated or not. Their Lordships of the Supreme Court held that the mere fact that the proceedings were taken in a wrong place would not vitiate the whole trial unless it appeared that this had occasioned a failure of justice. In the instant case also the order passed by the Sub-Divisional Magistrate, Phulpur cannot be said to have caused any prejudice to anyone much less to the applicant, or resulted in failure of justice and in its absence the order passed by the Sub-Divisional Magistrate. Sadar cannot be set aside on that score.
10. So far as the second point is concerned there is no controversy that the provision of Section 145(3), Criminal Procedure Code was not complied with in this case inasmuch as no copy of the order was affixed to some conspicuous place at or near the subject-matter of dispute. The learned Second Additional Sessions Judge relying on the case of Ram Charan v. State 1969 All Cri R 503 (supra) held that Section 145(3) imposed a duty on the court and must be taken to be mandatory and non-compliance with this provision was not a curable irregularity. In this connection reference may be made to the case of Sukhlal Sheikh v. Tara Chanel (1905) ILR 33 Cal 68 : 2 Cri LJ 618 (FB) in which it was held by a Full Bench that the provision as to the publication of the copy of the order in Section 145(3) related to the matter of procedure only and not of jurisdiction and that, if Clause (1) of Section 145, Criminal Procedure Code had been complied with, the Magistrate had jurisdiction to deal with case and the mere fact that he omitted to have a copy of such order published by affixing it to some conspicuous place at or near the subject-matter of dispute did not deprive him of jurisdiction but was only an irregularity in his procedure. In construing the Sub-clause (3) of Section 145, Criminal Procedure Code we have to bear in mind the purpose with which this section was enacted. Its object was clearly to bring to an end by a summary process disputes relating to land etc., which are in their nature likely to end in breaches of the peace. This clause provides for the publication of a copy of the order in a conspicuous place at or near the subject-matter of dispute obviously with the intention of guarding against collusive proceedings as well as to give to any one interested in the subject of dispute, an opportunity of coming with his claim and also to notify generally to all persons in the locality that the pro-feedings under that section have been started. We are, therefore, unable to hold that if the notice is not published in the manner prescribed the Magistrate loses his jurisdiction to hold an inquiry into the question of possession. 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 the revisional court can set aside the proceedings only if it is shown that any party has been prejudiced thereby. The same view was taken in the case of Ratan Singh v. Raghubir Singh : AIR1952Mad165 . In Debi Prasad v. Sheo Dutt Rai (1907) ILR 30 All 41 : 6 Cri LJ 352 the Magistrate had failed to comply strictly with the provisions of Section 145, Criminal Procedure Code inasmuch as no notice of the order was fixed to any place at or near the subject of dispute. Richards, J., held:
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.
At another place he observed:
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.
11. In Kapoor Chand v. Suraj Prasad : AIR1933All264 the Magistrate had omitted to pass a preliminary order to the effect that he was satisfied that there was an apprehension of a breach of peace. The Full Bench held that there was material on which the Magistrate could be satisfied. The mere omission to pass an order in explicit words would not vitiate the subsequent proceedings or take away the jurisdiction of the magistrate. It would be a mere irregularity curable under Section 537, Criminal Procedure Code if it has not occasioned any failure of justice. This Full Bench case was subsequently relied upon and followed in another case of this Court viz., Narain Singh v. Smt. Suraj Kishore Devi : AIR1951All826 . In Parmatma v. State : AIR1954All24 the question arose whether non-compliance with the provisions of Section 145(1) and (3), Criminal Procedure Code is by itself fatal to the proceedings. Randhir Singh J., as he then was, held that failure to comply with this provision is a mere irregularity and where no failure of justice has been occasioned the proceedings cannot be rendered invalid. Much capital cannot be made out of the case of Ram Charan v. State 1969 All Cri R 503 (supra) because in that case the parties appear to have conceded that failure to comply with the provisions of Section 145(3) Cr. P.C. had resulted in failure of justice. None of the parties there appears to have raised the plea that at all events such non-compliance had not resulted in any prejudice. In the instant case the point has been expressly canvassed. It may, however, be noted that in the present case not only both the parties to the dispute had notice of the order and had their respective cases fully heard, but two other persons, namely, third party also turned up and filed their written statement. The learned Counsel for the opposite party admits that he is unable to point out or suggest any injury suffered by his client due to the non-compliance with the provisions of Section 145(3). It is further important to state that in the Explanation appended to Section 537, Cr. P.C. it is enacted that in determining whether any error, omission or irregularity in any proceedings under this Code has occasioned a failure of justice the court shall have regard to the fact whether the objection could or should have been raised at an earlier stage. In the instant case no such objection appears to have been taken before the S. D. M., Sadar. Therefore, we are of the opinion that failure to fix copy of the order to some conspicuous place at or near the subject-matter of dispute has not occasioned any failure of justice and the order of the S. D. M. could not be set aside on that score.
12. As the learned Second Additional Sessions Judge has allowed the revision on the aforesaid two grounds and has not gone into the merits of the other contentions raised before him, we allow this revision, set aside the order passed by him and send the revision back to his Court for disposal after hearing both sides on other points.