Skip to content


Kapoor Chand and anr. Vs. Suraj Prasad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Reported inAIR1933All264
AppellantKapoor Chand and anr.
RespondentSuraj Prasad
Cases ReferredMg. Po Lon v. Mg. Ba On A.I.R.
Excerpt:
.....fact occasion a failure of justice. here again it is the receipt of the information that gives the magistrate jurisdiction to act in the matter mentioned in in section 133. 12. now, if we read section 145, in the light afforded by the sections quoted above, we see that if the magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the code to act in a particular way. if this view be correct, the jurisdiction of the magistrate arises from the fact he has received certain information and that he is satisfied as to the truth of that information. 13. it was argued that the omission, on the part of the magistrate to record the fact that he was satisfied..........really in peaceful possession of the property, before his eviction by the opposite parties. the learned magistrate, by this order, furthcr forbade all disturbance with chunni lal's possession. the magistrate having omitted to pass any order as to costs, an application was made by sarju prasad for assessment of costs and on 4th june 1931, by ex parte order, the magistrate assessed the costs at rupees 516-13-6, against the opposite parties.5. the applicants before us went before the learned sessions judge with a petition of revision but it was rejected by him; there upon the matter came up to this court. several points have been taken before us. one of these we can at once rule out, on the ground that it was not taken in the court below and was not taken specifically in this court. as.....
Judgment:

Mukerji, Ag. C.J.

1. The matter before us arose out of a petition for revision presented by two persons, Kapur Chand and Harish Chandra, who were dissatisfied with an order of a Magistrate passed on 2nd June 1931. The matter came up before one of us and having regard to the conflict of decisions he referred it to a larger Bench and accordingly, this Bench was constituted. The facts briefly are these: One Sarju Prasad, as the servant of one Chunni Lal Garg, filed a petition under Section 145, Criminal P.C., on 21st July 1930 before the City Magistrate of Cawnpore, Mr. Barron. The petitioner said that his master, Chunni Lal was in possession of a house in the city and the opposite parties (namely, the applicants before us and one Gulab Chand) were trying to interfere with the possession of his master and that there was a likelihood of a breach of the peace. The Magistrate took down the statement of Sarju Prasad on oath and directed a police inquiry into the matter. On receipt of the police report he passed the following order:

There appears to be some basis for this complaint to judge from the police report. As I am unable, owing to pressure of work, to dispose of it myself I transfer it for such action as may be thought fit, along with a connected application to the Court of Babu Anand Sarup Sahib for disposal.

2. The papers were accordingly sent to Mr. Anand Sarup and he, on 7th August 1930, passed an order which is recorded in the order sheet in the vernacular. It has not been translated and made a part of our typed record but the order reads as follows, if translated into English:

The record of the case has been received. It was put up before the mukhtar of the complainant. The complainant is not present in person; on inspection of the record it is ordered that notice be issued, in accordance with law, to the opposite parties on condition of the complainant depositing the process fee. The complainant and his mukhtar may also be informed. The mukhtar is present and he is informed.

3. On this order a notice was issued which professed to be one under Section 145, Criminal P.C., and mentioned that section. This again has not been incorporated in our paper book and is. in the vernacular. When translated it reads as follows:

Since I have been informed that with respect to house No. 35/183 situated in Bengali-mohalla in the city of Cawnpore there is a serious dispute between the parties, you are hereby informed that on 19th August 1930 you should appear in my Court and file your reply. Till then you should not in any way interfere with the property aforesaid.

4. Written statements were filed and evidence was recorded and Mr. Anand Sarup, as already stated, by his order dated 2nd June 1931, decided the matter before him. He directed that the applicant Sarju Prasad's master be put in possession of the property, his finding being that the master, Chunni Lal, had been really in peaceful possession of the property, before his eviction by the opposite parties. The learned Magistrate, by this order, furthcr forbade all disturbance with Chunni Lal's possession. The Magistrate having omitted to pass any order as to costs, an application was made by Sarju Prasad for assessment of costs and on 4th June 1931, by ex parte order, the Magistrate assessed the costs at Rupees 516-13-6, against the opposite parties.

5. The applicants before us went before the learned Sessions Judge with a petition of revision but it was rejected by him; there upon the matter came up to this Court. Several points have been taken before us. One of these we can at once rule out, on the ground that it was not taken in the Court below and was not taken specifically in this Court. As it involves a decision as to facts, we are unable to proceed with it. It is this: that Mr. Anand Sarup had no jurisdiction in the matter, because Mr. Barron had no authority to transfer the case to Mr. Anand Sarup unless the latter was subordinate to Mr. Barron. We do not know what were the respective postions of the two Magistrates. It may be that Mr. Barron was a Subdivisional Magistrate and that Mr. Anand Sarup was subordinate to him under Section 17(2), Criminal P.C. Or it may be that Mr. Barron had been specially empowered under Section 192(2) to transfer cases to Mr. Anand Sarup. These arc questions of fact and we cannot allow a new point to be raised in revision which involves a decision on a question of fact.

6. The first point that has been argued is that Mr. Barron, the City Magistrate, had no jurisdiction to transfer the case to Mr. Annnd Sarup without having previously taken cognizance of the case. The argument is based on Section 192, Criminal P.C. It is argued that a Magistrate can transfer a case only if he has taken cognizance of it, and that Mr. Barron had not taken cognizance of it. We are of opinion that Mr. Barron did take cognizance of the case inasmuch as he, on the presentation of the petition, examined the petitioner on oath, then ordered a police enquiry to be made and on receipt of the police report, he applied his mind to the report and come to the conclusion that there was some basis for the complaint. He did not himself proceed further with the case because he was busy otherwise, but he had undoubtedly taken cognizance of the case before he transferred it.

7. The next point is that Mr. Anand Sarup did not proceed in accordance with law and, as he did not strictly comply with the provisions of Section 145, Criminal P.C., he had no jurisdiction in the matter. We have already stated what orders Mr. Anand Sarup passed and what was the nature of the notice isused by him. There can be no doubt that Mr. Anand Sarup did not strictly comply with the law. He did not expressly state that he was satisfied that there was a likelihood of a breach of peace nor did he mention specifically the grounds on which he was so satisfied. All that he said was that he had perused the record which, of course, included the police report and the statement on oath of the petitioner. He directed a notice to issue 'according to law' which can only mean that it purported to be an order under Section 145(1), Criminal P.C. Then the order which he actually issued quoted Section 145, as the rule of law under which it had been issued. The order recorded the fact that the Magistrate had received information that there was a 'serious dispute' between the parties. In these circumstances, although we are of opinion that the Magistrate did not follow the letter of the law, we have every reason to believe that he was satisfied in his mind, on a perusal of the police report and the sworn statement of the applicant, that there was a likelihood of a breach of the peace. Further, it appears that the opposite parties, on receipt of the notice, did laisc the question as to the likelihood of a breach of the peace. The learned Magistrate expressly applied his mind to that point, and on the evidence before him, came to the conclusion that there was a likelihood of a breach of the peace. In the circumstances there is reason to believe that the Magistrate was satisfied in his own mind, before he took any action, that there was a likelihood of a breach of the peace with respect to an immovable property.

8. Now we have to consider whether the defects in the Magistrate's order de-prived him of jurisdiction to proceed with the case. In other words, we have to see whether because the Magistrate did not strictly comply with the letter of the law in formulating his order under Section 145(1), he had no jurisdiction to proceed with the case. On this point a large number of cases have been cited and as most of the cases have been decided by learned Judges of this Court, Sitting singly, we do not propose to examine each and every one of them. We may also point out that many of these judgments do not consider the effect of Section 537 upon defects in the order passed under Section 145(1). Section 537, Criminal P.C., lays down that

a Court of appeal or a Court of revision shall not reverse or alter any order passed by a Court of competent jurisdiction on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under the Code, etc.

9. Section 537 would cure all defects provided the Court which passed the order was one of competent jurisdiction and provided that the defects did not in fact occasion a failure of justice. The jurisdiction that is conferred on a Magistrate is conferred on him by the fact that he is a Magistrate and is entitled to act in a particular way in certain circumstances. In the case of the commission of an offence, he is empowered under the Code to take cognizance of the offence and to enquire into it or to try the accused person formally brought before him. In matters which do not relate to an offence but which relate to the likelihood of offences being committed, the Code provides for certain preventive measurers. The Magistrate is authorized to take those measures and jurisdiction is conferred on the Magistrate by the mere fact that he is a Magistrate and it is his duty not only to try an alleged offender but also to prevent the commission of offences. If we examine certain other sections of the Code, we shall sec how a Magistrate is authorized to act in order to prevent the commission of offences. Section 106, Criminal P.C., lays down that when a Court convicts a person of an offence involving a breach of the peace, it is authorized to direct the convicted person to enter into a bond for keeping the peace for a certain period of time. Then Section 107, Criminal P.C. says that when a Magistrate:

is informed that any person is likely to commit a breach of the peace...the Magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond....

10. It will be noticed that the Magistrate is to act in a certain way when he receives certain information. As soon as he receives such information he is authorized to act in a particular way. So it is the getting of the information that entitles him to act, and when he is entitled to act, he has jurisdiction to act (in the matter). Similarly Section 108 lays down that

when a Magistrate has information that there is within the limits of the jurisdiction any person who...disseminates or attempts to disseminate...any seditious mater...such Magistrate, if in his opinion there is sufficient ground for proceeding, may in manner hereinafter provided require such person to show cause....

11. Here again we find that the Magistrate, in order to act, has only to be informed of certain matters and, of course, he has to believe the information. As soon as he gets the information, he is competent to act, and the Code tells him how he is to act. Similar provisions will be found in Sections 109 and 110, Criminal P.C. Section 112 lays down the procedure for Magistrates to follow in matters detailed in Sections 107, 108, 109 and 110. It says that the Magistrate should make an order in writing setting forth the substance of his information, etc. Then Section 113 and the following sections tell him how he is to proceed further. Similarly Section 133 says that 'where a Magistrate on receiving a police report or other information' considers that certain public nuisances should be removed or prevented, such Magistrate may make an order. Here again it is the receipt of the information that gives the Magistrate jurisdiction to act in the matter mentioned in in Section 133.

12. Now, if we read Section 145, in the light afforded by the sections quoted above, we see that if the Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular way. If this view be correct, the jurisdiction of the Magistrate arises from the fact he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does not depend on how he proceeds. There are two things: one is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate to follow certain direction: contained in the Code, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction.

13. It was argued that the omission, on the part of the Magistrate to record the fact that he was satisfied that a dispute likely to cause a breach of the peace existed and further to record the grounds on which he was so satisfied, is an 'illegality' which cannot be cured by Section 537, Criminal P.C. which deals only with irregularities and not with 'illegalities.' The argument has been based on the Privy Council decision in Subrahmania Ayyar v. Emperor (1902) 25 Mad 61. In this case the accused person was charged with no less than 41 offences committed within the space of two years. Their Lordships of the Privy Council remarked as follows:

The remedying of mere irregularities is familiar in most systems o jurisprudence, but it would be an extraordinary extension of such a branch of administering the criminal law to say that when the Code positively enacts that such a trial as that which has taken place here shall not be permitted that this contravention of the Code comes within the description of error, omission or irregularity.

14. Their Lordships made the remark in dealing with Section 537 of the Code. In a later case however viz., Abdul Rahman v. Emperor , their Lordships pointed out that in the earlier case 'it was possible that it might have worked actual injustice to the accused.' It may be that their Lordships of the Privy Council, in the later case, wanted to point out that Section 537, Criminal P.C. could not cure the defect in the case of Subrahmania Ayyar (1902) 25 Mad. 61, because the Code contained the provision that an irregularity, which had worked injustice to the accused, could not be cured. 'But it is significant that although their Lordships of the Privy Council drew a distinction between an 'illegality' and an irregularity' in the earlier case, which was decided in the year 1901, the legislature did not introduce the word 'illegality' in Section 537 or anywhere else in the Code, although it was amended after that year. This being the state of the law, we do not think that we should introduce a distinction between 'illegality' and 'irregularity.' The sole criterion given by Section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if in spite of even total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong.

15. Having regard to the conclusion at which we have arrived, it is not necessary for us to examine many of the cases that have been decided in this Court. It would be sufficient for us to mention that some learned Single Judges in Banka Singh v. Gokul : AIR1927All286 and Brahmanath v. Sundar Nath AIR 1919 All 311, took the view that the omission to make the order in conformity with Section 145, Criminal P.C., amounted to an illegality and ousted the jurisdiction of the Magistrate, and the order, good or bad, must be set aside. A contrary view was taken by two learned Judges of this Court in Ganga Saran Singh v. Bhagwat Prasad (1910) 32 All 132, by a learned Single Judge of this Court, in Madan Mohan Lal v. Sheoraj Kunwar : AIR1932All446 , and by two learned Judges of this Court in Barmha Singh v. Emperor : AIR1932All681 . As we have said, in view of the fact that the rulings quoted before us were mostly decisions of learned Single Judges, and having regard to the fact that we have tried to arrive at some principle on which to base our decision, we need not examine the cases expressing the opposite view.

16. We have repeatedly asked Mr. Pathak, the learned Counsel, who ably argued the case for the applicants, if he could tell us how his clients were prejudiced by the omission on the part of the Magistrate to comply strictly with the provisions of Sub-section (1), Section 145, Criminal P.C. He replied that he was not in a position to say that his clients had been prejudiced. In view of this admission and in view of the fact that we ourselves are not in a position to discover that the applicants have in any way been prejudiced by the said omission, we are of opinion that the irregularity committed by the Magistrate is cured by Section 537, Criminal P.C. The next point that was urged was that the Magistrate was wrong in awarding costs to the opposite party, two days after he had passed his orders on the main application. The question of costs is dealt with by Section 148(3), which does not fix any limit of time for passing the order as to costs. All that is needed is that the Magistrate passing the decision should make an order as to costs. This being the case, we are not in a position to say that the order that was passed as to costs two days after the decision of the main case was an illegal order. This view is in accordance with the decision in the case of Nafar Chandra v. Siddhartha Krishna AIR 1920 Cal 320.

17. Next it was objected that the order as to costs was passed ex parte. Although Section 148(3) does not expressly state that a party should have an opportunity of being heard before an order for costs is passed against him, and the Magistrate therefore cannot be held guilty of an 'irregularity,' we agree that, in accordance with the ordinary principles of justice the Magistrate should not have passed the order without giving the applicant an opportunity of showing cause against granting the opposite party's application. We see no reason however to interfere, as the learned Sessions Judge has considered the order upon its merits and has come to the conclusion that, having regard to the fact that the case dragged on for about a year, the amount of costs was not unfair. On behalf of the opposite parties we have been asked to award them costs of the proceedings before us and as an authority a decision of a learned Single Judge of this Court in Panna Lal v. Emperor All Criminal Revn No. 221 of 1931 dated 13-7-1932. has been cited. Against this decision which followed a two Judge decision of the Bombay High Court, is the decision of the Full Bench case of Veerappa Naidu v. Avudayammal AIR 1925 Mad 438 which, in its turn, purported to follow a Calcutta case, Mehi Singh v. Mangal Khandu (1912) 39 Cal 157. The learned Counsel for the opposite party also cites Mg. Po Lon v. Mg. Ba On A.I.R. 1925 Rang. 111(2). We have given the matter our independent consideration and we are of opinion that Section 423, Clause (d), Criminal P.C. read with Section 439 does not authorize the High Court, in revision to award costs of the proceedings before it. Clause (d), Section 423 authorizes the appellate Court

to make any amendment or any consequential or incidental order that may be just or proper.

18. The words under quotation mean that the appellate Court may amend the order appealed from and may, further, pass such orders that follow from or are accessory to the order passed. They do not mean that the appellate Court may pass any order as to costs of the appeal itself. We are of opinion that no costs can be awarded to the opposite party. In the result the application fails and is hereby dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //