G.K. Misra, C.J.
1. Petitioners along with Opposite Parties 11 and 12 are members of the second party in a proceeding under Section 145, Criminal Procedure Code. Opposite Parties 1 to 10 are members of the first party. Disputed lands constitute 11.07 acres. The plot numbers in the Current Settlement (1930) with corresponding plot numbers in R. S. (1911) and running settlement (1965) are given hereunder:
-----------------------------------------------------R.S Current Settlement Bunning Settlement (1911) (1930) (1965)-----------------------------------------------------Plot No. Plot No. Plot No.235 242 264255 300 359328 119 & 120 260 A 261379 448 504240 279 302 & 384-----------------------------------------------------
In the impugned order C. S. Plot numbers have been given. The first Party members in their written statement have indicated the corresponding plot numbers in the three settlements, Sri Suresh Chandra Mohanty, an Advocate, who knows survey relaid the Revision and Current Settlement maps and confirmed that the plot numbers correspond as indicated above. In the Yadast (Ext. 12) 1930 settlement plot numbers and 1965 settlement plot numbers have been mentioned,
2. The case of the members of the first party is as follows : The ancestors of the petitioners (hereinafter called as Beheras) were the owners of the disputed lands at the time of the Revision settlement. They mortgaged those lands along with other lands to the ancestors of the first party members (hereinafter called as Naiks). The mortgagors did not redeem the mortgage. The mortgagees got a mortgage decree. The decree was put into execution in Execution Case No. 107 of 1922 and the disputed properties along with other properties were purchased by the decree-holders on 26-5-1922. Delivery of possession through court under Ext. 10 was obtained on 24-1-1923. In Ext. 10 plot numbers were given according to the Revision Settlement. Though the Beheras were dispossessed through court they created disturbance in the possession of the Naiks as their names were recorded in the 1930 settlement papers. The naiks filed Title Suit No. 57 of 1929 against the Beheras for declaration of title, confirmation of possession or in the alternative for recovery of possession and for permanent injunction. The suit related to the disputed lands and other lands. It was decreed on 28-8-1930. Ext. 8 is the judgment and Ext. 9 is the decree in that suit. The Subordinate Judge in, that suit held that the Naiks had title and that possession had been delivered to them in Execution Case No. 107 of 1922 and they were continuing in possession of the properties. A permanent injunction was issued against the Beheras restraining them from interfering with the possession of the Naiks. The Naiks thereafter continued in possession and paid rent in evidence of which they filed rent receipts (Ext. 15 series and Ext. 20 series). In 1965, settlement operations started in the locality. The .petitioners, the descendants of the Beheras, created disturbance in the peaceful possession of the first party members. On 20th of November, 1965 the first party members filed an application, under Section 144 Cr. P. C. The disputed, properties were referred to in the petition. The Beheras filed written statement showing cause. On 18-1-1966 the learned Magistrate converted the proceeding under Section 144, Criminal Procedure Code to one under Section 145, Cri. Pro. Code in presence of both the parties and directed them to file their written statements, affidavits and documents in support of their respective cases. The learned Magistrate did not, however, expressly state that a preliminary order was passed under Section 145, Criminal Procedure Code.
The relevant portion of the order may be extracted:
xx xx In view of the above facts as a considerable time has passed alter pronouncement of the Civil Court decree and as the parties are putting rival claima of possession I convert this proceeding to one under Section 145, Criminal Procedure Code for a fuller enquiry. The subject-matter of dispute is attached and the previously appointed receiver is to continue as such for the attached property, and to render all accounts to this Court. The parties are directed to produce documentary and other evidences and written statements if any by; 14-2-1966. The first party files documents as per list.
Both the parties- filed their written statements wherein no objection was taken that there was absence of a formal preliminary order in the order dated 18-1-1966 as contemplated under Section 145(1), Criminal Procedure Code.
The petitioners filed written statement accepting the previous decrees and the execution proceedings but asserted that they are recorded tenants both in the Revision Settlement and the 1930 settlement and that they had never been dispossessed from the lands in question. The first party members filed affidavits of 9 persons and some documents. The petitioners also filed affidavits of 9 persons and some documents.
On 29-5-1968 final order declaring possession of the first party members was passed. In Criminal Revision No. 254 of 1968, Acharya, J., set aside that order on the ground that affidavits were not sworn before the competent Magistrate as was held by this Court in (1970) 36 Cut LT 250 : 1970 Cri LJ 1580, Krushna Chandra. Naik v. Sk. Makhbul. The Magistrate was directed to dispose of the case in accordance with law after the parties filed fresh affidavits. The Magistrate after remand dropped the proceeding on 28-5- 1971 holding that the matter was of a purely civil nature and the parties should seek redress in proper court. In Criminal Revision No. 457/71 filed by the first party members this order was set aside by Panda, J., on 12-3-1973 and the Magistrate was directed to dispose of the case on appraisal of affidavits and documents filed by the respective parties. The Magistrate on examination of the materials on record declared by his order dated 29-9-1973 the possession of the first party members on the date of the preliminary order. It is against this order that the Criminal Revision has been filed.
The case was heard by me. The only contention advanced by Mr. Mohanty for the petitioners was that as there was no formal preliminary order passed by the Magistrate on 18-1-1966 when he converted the proceeding under Section 144, Criminal Procedure Code to one under Section 145, Criminal Procedure Code the entire proceeding was without jurisdiction and the impugned order is liable to be quashed. In support of his contention he placed reliance on a decision, of Patra, J., in (1971) 37 Cut LT 188. As this decision prima facie supports his contention I considered it desirable to refer the matter to a larger Bench. This is how the case has come before us.
3. It is to be noted that this contention affecting jurisdiction was not taken up in the written statement, or before the learned Magistrate or Acharya and Panda, JJ. If the absence of a formal preliminary order caused prejudice to the petitioners the objection should have been raised at the earliest opportunity and at least in the first Criminal Revision decided by Acharya, J. The significance of this non-objection would be discussed at a later stage.
4. The point urged by Mr. Mohanty raises the following questions:
(i) What gives jurisdiction to a Magistrate to initiate a proceeding under Section 145, Criminal Procedure Code ?
(ii) If the Magistrate exercises jurisdiction by having satisfaction that there was apprehension of breach of peace relating to immovable property, whether his final order is to be quashed because of his failure to draw up a preliminary order or failure to set out the grounds in the preliminary order unless prejudice is shown ?
(iii) What would be the date of the preliminary order when a proceeding under Section 144, Criminal Procedure Code is converted to one under Section 145, Criminal Procedure Code ?
(iv) Whether the final order passed by the Magistrate under Section 145, Criminal Procedure Code can be assailed when the order initiating a proceeding under Section 145(1), Criminal Procedure Code is not challenged on the ground of absence of jurisdiction ?
5. To appreciate the aforesaid contentions Section 145(1), Criminal Procedure Code, 1898 may be extracted:
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 a 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 dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.
The scope and ambit of this section is no longer res Integra, A bench of this Court consisting of A. Misra, J., and myself observed thus in 19671 33 Cut LT 102 (Purusottam Choudhury v. Purandar Singh):
The Magistrate is thus seized of jurisdiction only if he is satisfied that a dispute likely to cause breach of the peace exists. In respect of dispute relating to land, ordinarily the Civil Court has jurisdiction. But if there is an apprehension of breach of the peace relating to land, the Criminal Court gets jurisdiction under this section. The jurisdiction of the Magistrate does not depend upon how he proceeds. Satisfaction regarding existence of a dispute likely to cause breach of the peace confers the authority on the Magistrate to act under this section. The other matters relate to procedure stating how he is to act. If he has jurisdiction, he is not deprived of it, merely because the procedure followed by him was erroneous or defective. An omission on his part to state the grounds of his satisfaction, or to follow certain directions contained in the Code, cannot deprive him of his jurisdiction which is derived from the satisfaction itself. If the materials on record establish that the Magistrate had the satisfaction and accordingly assumed jurisdiction, the order passed is the preliminary order under Section 145(1) even though there is omission of the grounds or of the drawal of the formal order.
Reliance was placed for the aforesaid proposition on AIR 1933 All 264 : (1933) 34 Cri LJ 414 (FB), (Kapur Chand v. Suraj Prasad). A passage from (1965) 31 Cut LT 251 : (1965) 2 Cri LJ 788 (Murali v. Purusottam) to the following effect.
It is the duty of the Magistrate to record in writing in clear and unambiguous terms that a dispute likely to cause breach of the peace exists and the grounds of his being so satisfied. If, however, due to inadvertence the Magistrate does not State the grounds for his satisfaction, the proceeding cannot be quashed as being without jurisdiction if it otherwise appears from the record that there were materials for the satisfaction when the order under Section 145(1), Criminal Procedure Code was passed. No hard and fast rule can be laid down. Each case must, however, be governed by its own facts.
was approved by the Division Bench.
It is not necessary to refer to several authorities of other High Courts as the matter is concluded by the Bench decision of this Court. The first question can be answered by saying that the Magistrate gets jurisdiction only when he has satisfaction that there is apprehension of breach of peace relating to immovable property. If the existence of the satisfaction can be determined prior to the initiation of the proceeding from the materials on record, mere absence of drawal of a formal preliminary order or reasons therein would not vitiate the proceeding unless prejudice is shown.
: AIR1950Pat372 (Wazir Mahton v. Badri Mahton) 1970 BLJR 1207 (Ramswaroop Singh v. Biso Singh) AIR 1943 Pat 44 : (1943) 44 Cri LJ 25 (Shibnarayan Das v. Satyadeo Prasad) and (1913) ILR 36 Mad 275 : (1912) 13 Cri LJ 753 (T. Kamal Kutty v. Udayayarma Raja Valia) support such a conclusion . It is not necessary to multiply authorities.
If, however, a party can establish that prejudice has been caused to him by non-drawal of a formal preliminary order or non-mention of reasons therein the proceeding can be quashed.
6. Section 537, Criminal Procedure Code, so far as relevant runs thus:
537. Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account-
(a) of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code.
XX XX XX XX unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.
Explanation. - In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.
In this case initially a proceeding under Section 144, Criminal Procedure Code had been drawn. The disputed plot numbers were the subject-matter of the proceeding under Section 144. Lands were attached and kept in charge of a receiver in that proceeding. By the time the proceeding under Section 144 was recorded to one under Section 145 On 18-1-1966 the properties were already under attachment. There was existence of apprehension of breach of peace, when the proceeding under Section 144 was initiated. There was continuance of such apprehension by the time the proceeding under Section 144 was converted to one under Section 145. Thus the Magistrate had satisfaction from the time when the proceeding under Section 144 was started that there was apprehension of breach of peace and also at the time of conversion. The Magistrate having the full satisfaction of the existence of apprehension of breach of peace had jurisdiction to initiate the proceeding and it was not without jurisdiction.
The non-drawal of a formal preliminary order on 18-1-1966 caused no prejudice to the petitioners. They had notice of filing written statements, documents and other evidence. Section 537 (a). Criminal Procedure Code read with the Explanation saves the proceedings even if the preliminary order had not been drawn. This objection could have been taken by. the petitioners before the learned Magistrate in the written statement itself, The order dated 18-1-1966 could have been assailed, in the High Court as being without jurisdiction before the written statement was filed. That apart, the matter was at large before Acharya, J. Even then no such objection was taken. Clearly the petitioners were not prejudiced and the High Court would not interfere in such cases.
On the aforesaid analysis, we hold that the Magistrate got jurisdiction on his having the necessary satisfaction and moreover it is not open to the petitioners to urge this contention as they did not raise it either at the earliest opportunity or even on later occasions before the High Court in the two previous criminal revisions,
7. It has been authoritatively pronounced in AIR 1943 Pat. 44 : ((1943) 44 Cri LJ 25 and (1906) ILR 33 Cal 33 : ((1901) 2 Cri LJ 670) (Kulada Kinkar Rao v. Dinesh Mir); that unless the initial order is challenged as being in excess of jurisdiction the final order cannot be assailed. The exercise of the powers of the High Court under Section 439, Criminal Procedure Code is discretionary. The discretion will not be invoked in favour of a party who is not vigilant and took advantage of the proceeding by taking part therein and by adducing necessary evidence until an adverse judgment is pronounced. The petitioners were waiting for the off chance that they might get a favourable order in their favour in which case they would not have raised this objection. Court would not assist a party who does not come with clean hands.
8. The next question for consideration is as to what would be the date of the preliminary order when a proceeding under Section 144 is converted to one under Section 145. In ILR 1958 Cut 253 : (1958 Cri LJ 919) (Gangadhar Singh y. Shyam Sundar Singh) a Bench of this Court consisting of Narasingham, C. J. and Barman, J., observed thus in paragraph 16 of the judgment:
But there may be circumstances where the delay in taking action is entirely due to the court. For instance, if on receipt of a petition or report of the Police regarding apprehension of breach of peace in respect of immovable property, the Magistrate instead of drawing up a proceeding under Section 145, Criminal Procedure Code, draws up a proceeding under Section 144, Criminal Procedure Code, restrains both parties from entering upon the property and makes some interim arangement for the management of the property and then, on the expiry of the order under Section 144, converts the proceeding into one under Section 145, it will not be proper to hold that the relevant date for the purpose of the proviso to Sub-section (4) of Section 145 is the date on which the preliminary order under Section 145(1) was passed and not the date on which the order under Section 144 was passed. Instances in which Magistrates, specially in this State, in the first instance draw up a proceeding under Section 144 and then convert it into a regular proceeding under Section 145 are numerous. There are doubtless clear decisions about the circumstances under which a proceeding under Section 144, Criminal Procedure Code, should be started where there is dispute about immovable property and about the circumstances in which the more appropriate course would be to initiate a proceeding under Section 145, Criminal Procedure Code. But in respect of both proceedings the satisfaction of the Magistrate that there is apprehension of breach of peace is the foundation for taking action. Once he reaches that satisfaction he is bound to take preventive action and if he takes action under Section 144, Criminal Procedure Code, when the appropriate course would be to take action under Section 145 the delay must be attributed entirely to the court and it should not prejudice any party. The aforesaid maxims would then apply with full force. Ray, C. J., left this question open in his judgment in : AIR1952Ori26 . I would, however, with respect. agree with the decision in JLR 1954 Cut 215, to this limited extent, that where the proceeding under Section 144, Criminal Procedure Code, is the forerunner of the subsequent proceeding under Section 145, the date of the order for the purpose of the proviso should be taken to be the date on which the proceeding under Section 144 was started.
By applying the aforesaid test, in this case the date of the preliminary order would be 20-11-1965 when the proceeding was initiated under Section 144. Criminal Procedure Code. The same view was taken by R. N. Misra, J., in (1973) 39 Cut LT 152 : 1973 Cri LJ 1050 (Batakrishna Naik v. Khageswar Kundu) without referring to the aforesaid Division Bench decision.
9. We would sum up our conclusions thus:
(i) The Magistrate gets jurisdiction to initiate proceeding under Section 145, Criminal Procedure Code on his having satisfaction that there is apprehension of breach of peace relating to immovable property. The jurisdiction to initiate the proceeding does not depend on the manner in which he drew up the initial order.
(ii) Failure to draw up a formal preliminary order under Section 145(1) is a mere irregularity and does not affect the question of jurisdiction. Such a proceeding is not liable to be quashed unless prejudice is shown and unless such an objection is taken at the earliest opportunity as prescribed in Section 537, Criminal Procedure Code.
(iii) If the initial order is not challenged as being without jurisdiction and the party files written statement, enters into evidence and awaits till the off chance of getting a favourable judgment he cannot be allowed to assail the final order.
(iv) Where a Magistrate initiates a proceeding under Section 144, Criminal Procedure Code in respect of immovable property while he ought to have initiated a proceeding under Section 145(1) the party would not be allowed to suffer and the date of initiation of the proceeding under Section 144, Criminal Procedure Code shall be treated as the date of the preliminary order under Section 145(1).
10. Mr. Mohanty for the petitioners cited the following decisions : (1971) 37 Cut LT 188 AIR 1914 Mad 78 : ((1914) 15 Cri LJ 559) Subbarama Aiyar v. Mariya Pillai AIR 1936 Mad 824 : (1936) 37 Cri LJ 953 Mariasusai v. Hajee Mahamud : AIR1955Mad229 Pakamaraju Naicker v. Chidambara Nadar : AIR1964AP168 Kondappa v. Ram Row Sri Ram v. The State and (1973) 2 Cut WR 1553 Krushna Sahu v. Ghusuru Sahu.
11. We would first examine the correctness of the Single Judge decision in (1971) 37 Cut LT 188. In that case one of the parties filed an application asking for taking proceeding against the other party under Section 107, Criminal Procedure Code. The other party was asked by the Magistrate to show cause as to why he should not execute a bond to keep peace. After written statement was filed by the other party showing cause the learned Magistrate thought that a proceeding under Section 107, Criminal Procedure Code would not be of any effect and converted, the proceeding to one under Section 145, Criminal Procedure Code and informed the parties who were present In court to file written statements, affidavits and. documents, if any! by the next date. No preliminary order under Section 145(1) was specifically, drawn in that case. Patra, J., quashed the proceeding holding that as there was total absence of a preliminary order which is the foundation for a proceeding under Section 145 the proceeding was without jurisdiction. This decision did not notice the previous Bench decisions of this Court taking the contrary view. It is apparent from the order of the learned Magistrate that when he converted the proceeding under Section 107, Criminal Procedure Code to one under Section 145, Criminal Procedure Code he was satisfied that there was apprehension of breach of peace relating to immovable property. On the analysis we have given above, the order was within jurisdiction even though there was no formal preliminary order, Moreover, the petitioner in that case took full advantage of the proceeding, filed written statement, gave evidence and challenged the order of initiation of the proceeding under Section 145 as being without jurisdiction only after having lost the case. We are of opinion that this decision does not lay down the correct law and is hereby overruled, 'Doubtless, the learned Judge made the following observation:
We are not here concerned with a case of there being a preliminary order, but which is defective in form and is not strictly in accordance with the requirements of Section 145(1), Criminal Procedure Code in which case alone, the question whether it is a mere curable irregularity can arise for consideration.
The observation, with respect, did not take notice of the entire law on the subject.
12. The other decisions cited by Mr. Mohanty are. all distinguishable on facts. In AIR 1914 Mad 78 : ((1914) 15 Cri LJ 559) this question did not at all crop up for consideration. There an application under Section 144, Criminal Procedure Code was dismissed but while dismissing the application the learned Magistrate passed the following order:
The paddy on the land has been to a certain amount harvested by the Village Munsif : that Officer would be ordered to harvest the remainder and attach all the paddy on the land until an order is obtained from a Civil Court. If such order is not obtained within a month the Daddy will be sold 'in public auction.
It is this concluding portion of the order that the petitioners objected to as illegal and without jurisdiction. His Lordship accepted the contention and rightly. Once an application under Section 144 is rejected the Magistrate does not get any further jurisdiction to continue the attachment and deal with the property . At any rate, the point in issue in this criminal revision was not decided there.
In AIR 1936 Mad 824 : ((1936) 37 Cri LJ 953) the learned Magistrate had no satisfaction at all. Where there is no satisfaction that there is apprehension of breach of peace the entire proceeding is without jurisdiction and the matter can be objected to at a subsequent stage. On its own facts the case was correctly decided but it lends no support to the contention of the petitioners in this case.
In : AIR1955Mad229 there was absolutely an order under Section 145(1). A notice was issued to the parties intimating them that the petition under Section 145, Criminal Procedure Code stood posted to 2-8-1951 at Sivakasi for hearing. It was held that that is not an order under Section 145(1), Criminal Procedure Code. There being no order and consequently no satisfaction, the order was rightly quashed.
In : AIR1964AP168 there was no order under Section 145(1), Criminal Procedure Code signed by the Magistrate. On the report of the Sub-Inspector of Police the office clerk and the Head Clerk had merely put up notes. A date was fixed for recording the statement of the Sub-Inspector. After recording the statement the Magistrate passed no order in writing to issue notice to the parties. In the circumstances his Lordship rightly held that there was complete absence of satisfaction on the part of the Magistrate and the order was without jurisdiction.
In the Magistrate did not initiate the proceeding by recording that he was satisfied that there was apprehension of breach of peace. All that was stated in the order was to the effect 'As it is a case of emergency I order the land in dispute to be attached pending the decision of this application'. It is on these facts that the learned Judge rightly held that there was lack of jurisdiction as there was no satisfaction of apprehension of breach of peace.
(1973) 2 Cut WR 1553 : (1973 Cri LJ 1050) is a decision of R. N. Misra, J., where the point in issue did not arise. A new property which was not in the preliminary order was subsequently inserted. The learned Judge observed that as there was no amendment of the preliminary order by inserting the new property, any order under Section 145 with reference to that property would be without jurisdiction. It is difficult to appreciate as to why this decision was cited.
13. On the aforesaid analysis, the revision has no merit and is accordingly dismissed.
B.K. Ray, J.
14. I agree.