1. This revision is registered on a reference under Section 438, Cr. P.C. from the Additional Sessions Judge, Bhopal, recommending that the order dated 10-6-1953 issuing a notice under Section 145 (1), Cr. P.C. in Misc. Criminal Case No. 42 of 1953 in the Court of the District Magistrate, Raisen being illegal be set aside.
2. The facts are as below: In 1945 on an application from the Muslim community of 'kasba' Bareli in Raisen District a plot of open land measuring 60 x 60 yards i.e. about 70 decimals situate in the Mandi area of Bareli was allotted for construction of a mosque. A mosque was accordingly constructed on an area of about 10 decimals & the remaining area was lying vacant & was being used as previously for the timber market. In 1951, an area of about 41 decimals was fenced and as there was not enough space for the market the Notified Area Committee shifted the market from there.
3. In 1953 the Muslims of the place applied to the Tehslldar for permission to construct a house on the remaining vacant area and began construction of a row of shops along the road side The Hindu Community, however applied to the Deputy Collector objecting to such construction on the ground of inconvenience and that the plot was allotted only for a mosque and not for shops and such other constructions.
4. On the report from the Deputy Collector to the Collector-District Magistrate, Raisen, the latter on 31-5-1953 issued an order under Section 103, Criminal P.C. to the Manager of the mosque to remove the building material from the plot and on 10-6-53 Issued notices under Section 145(1), Cr. P.C. to the applicants Mushtaq Ali and others and the non-applicants Bulakichsind and others, to appear before him on 22-6-1953 and file their statements in regard to their ownership and ordered that all work of the construction be stopped. On 22-6-1953, the parties prayed for an adjournment without filing their statements and on 23-6-1953 the District Magistrate passed another order under Section 145, Cr. P.C. of attachment of the plot except the mosque and handed it over to the Tehslldar. It was the order dated 10-6-1953 of the District Magistrate that was challenged in the Court of the learned Additional Sessions Judge and the latter in a well-considered order has recommended that the order of the District Magistrate being illegal be set aside.
5. The learned Additional Sessions Judge finds the following illegalities in the order viz., (a) That the grounds, for the District Magistrate's satisfaction of the apprehension of the likelihood of the breach of peace which under the law were essential to be stated in the order, have not been stated. He relied on the decisions in - 'Mohd. Ishaq v. Emperor' AIR 1945 All 60 (A) and - 'Bisram v. Kainta Prasad' AIR 1945 Oudh 62 (B).
(b) That though the proceedings were started on the report of the Deputy Collector dated 6-5-53 on the applications of both parties said to have been forwarded to the District Magistrate, none of them finds place on the record and even the report of the Deputy Collector does not indicate any apprehension of the likelihood of breach of peace. Therefore, there was nothing on record in support of that supposition and as such the District Magistrate had no jurisdiction to pass the order under Section 145(1), Cr. P.C. The decision in - 'Mst. Rampyari v. Dankua' AIR 1949 All 402 (C) was relied upon.
(c) That if it is assumed that the District Magistrate took the action on his inspection of the spot then the note of the inspection should have been left on the record and the preliminary order should have stated this. Neither the note having been left on record nor any mention having been made in the preliminary order, there was nothing to indicate the grounds for the requisite satisfaction of the District Magistrate.
(d) That the preliminary order requiring the parties to put in their claims as to the ownership of the property was ultra vires of the District Magistrate on the very wording of Sub-section (1), Section 145, as the Magistrate had no power to ask for statement of claims in respect of the ownership but had it only in respect of the possession of the property in dispute.
(e) That the direction in the preliminary order to stop all sorts of constructional work till the decision of the case was illegal as not warranted by law.
6. In my opinion no hard and fast rule in the matter of the statement of the grounds in the preliminary order being essential, can be laid down but it has to be noted that the question whether there has been substantial prejudice to the parties, by their omission has to be examined in the light of the circumstances of each case and it is only if this has occurred that the order is vitiated.
This is clear from the observations in - 'V. M. Abdul Rahman v. Emperor' AIR 1927 PC 44 (D) where it is pointed out that the bare fact of an omission or irregularity in a matter of procedure unaccompanied by any suggestion of probable failure of justice having been occasioned thereby is not sufficient to invalidate the proceedings.
In the case on hand there is nothing on the record indicating even the suggestion of any breach of peace or of the satisfaction of the District Magistrate about the apprehension and it was therefore essential for the District Magistrate to state the grounds for his fear of such breach so that it would have been possible for the parties to examine their conduct or actions and to assure or otherwise the District Magistrate in the matter of alleged apprehension. In the circumstances the parties must be deemed to have been seriously prejudiced by the omission of the statement of the grounds in the preliminary order.
7. As regards the other grounds (b) to (e) I am in agreement with the observations and findings of the learned Additional Sessions Judge in regard to the preliminary order of the District Magistrate and that the order is illegal and even ultra vires of the said Magistrate.
8. Examining the order closely, I am perfectly clear that it cannot be upheld for a moment. The order does nowhere even state that the District Magistrate was satisfied that a dispute likely to cause a breach of peace existed. The order merely says.
Whereas it has been made to appear to me that a dispute regarding the construction of a building around the Mandi mosque at Bareli, likely to induce the breach of public peace existed between Hindus and Muslims of Bareli.
It is thus clear that the words 'likely to induce a breach of public peace' constitute an adjectival clause qualifying the noun clause 'a dispute regarding the construction of a building around the Mandi Mosque at Bareli.' Thus it is the opinion of the person who made it to appear to the District Magistrate 'that a dispute likely to cause breach of peace' existed and not the opinion of the District Magistrate who does not say a word of his being satisfied about the likelihood of a breach of the peace. The order does not even indicate that the District Magistrate applied his mind to the circumstances of the case.
9. Further examination of the record clearly shows that the District Magistrate was not even aware of the persons or parties concerned in the alleged dispute against whom he professed to take action. This is found from a 'Most immediate letter No. 10118/C.R. dated Raisen, 10-6-1953 to the Deputy Collector, Bareli' forwarding the notices under Section 145, Cr. P.C. for service.
The letter asks the Deputy Collector to fill up the names of the leaders concerned in the (obviously blank) notices forwarded for service. This letter is found in file No. 7 of the Deputy Collector. The District Magistrate has clearly acted in a flagrantly illegal manner in ordering the issue of notices to the parties not even known. All this shows extremely casual manner in which the matter was dealt and proceeded with.
10. The law gives power to Magistrate to take action in order to maintain law and order but with equal degree of force takes care to prevent jeopardy to the liberties or freedom of action of the citizens, by laying down a procedure under which alone the magistracy could take action and it is therefore that the superintending Courts have been invested with jurisdiction to examine the record to verify whether the legal procedure laid down under the law has been strictly followed or otherwise.
In the case on hand I am clearly of the opinion that the District Magistrate disregarded the procedure and allowed himself to be guided by others in matters where he himself was required to be satisfied and has acted arbitrarily and in a flagrant manner in suddenly proceeding against the parties so as to encroach on their freedom of action. The order of the District Magistrate is, therefore, vitiated by the serious irregularity and illegality committed by him.
11. The reference is therefore accepted and the order dated 10-6-1953 'of the District Magistrate, Raisen under Section 145(1), Criminal P.C. is set aside.