1. This is a reference by the Additional Sessions Judge, Junagadh, suggesting that this High Court should set aside the order of the Sub-Divisional Magistrate, passed on an application under Section 145 of the Cri. Pro. Code in favour of the opponent Velji Narsi of Mendarda against Pola Shambhu.
2. The opponent had filed an application on 2-7-52 under the above Section complaining of interference with his possession of land by Pola Shambhu. which was likely to cause breach of peace before the First Class Magistrate (Judicial), Junagadh. The First Class Magistrate recorded the statement on oath of the original applicant Velji and passed a preliminary order, whereby he ordered Pola Shambhu to furnish security for maintaining peace in the sum of Rs. 500/- for a period of six months. He at the same time ordered the usual issue of notice to him for hearing of the main application. Both the parties appeared before the Magistrate on 14-7-52, but the case was adjourned to 16-7-52. On that date it seems the learned Magistrate discovered that by operation of the Saurashtra Separation of Judicial and Executive Functions Act he had no jurisdiction to entertain an application Under Section 145, Cri. Pro. Code.
3. Now this Act came into force from 17-5-52. Accordingly the case papers were sent to the District Magistrate on 16-7-52 and he referred them to the Sub-Divisional Magistrate, who continued the proceedings and issued a notice to the parties of the hearing of the main application. Several adjournments seem to have been granted on one ground or the other and ultimately the Sub-Divisional Magistrate went into the evidence of both the parties and gave a finding in which he has given certain instances of interference with the possession of Velji Narshi by Pola Shambhu.
Although the learned Sub-Divisional Magistrate has not given a definite finding that there was likelihood of breach of peace, the acts found by him do indicate clearly that there was a likelihood of breach of peace. He also gave a finding that the land in dispute was in possession of . Velji Narshi and consequently he passed the order Under Section 145, Cr.PC restraining Pola Shambhu from interfering with the possession of yelji Narshi. Against this order Pola moved the learned Additional, Sessions Judge for making a reference to the High Court for setting aside the order and the present reference has accordingly been made.
4. The learned Additional Sessions Judge is of the view, that as the preliminary order made under Sub-section (1) of Section 145, Cri. Pro. Code was made without jurisdiction by the First Class Magistrate, Junagadh, and there was no confirmation or separate order by the Sub-Divisional Magistrate when he was seized of the matter under this sub-section, this defect was an illegality which was not curable Under Section 537, Cri. Pro. Code. The learned Additional Sessions Judge referred to the various rulings of the High Courts which are not consistent. The learned Advocate General has supported the reference and he has further contended that there is no distinct finding by the learned Sub-Divisional Magistrate that there was any likelihood of breach of peace, although there is a definite finding that the original applicant Velji Narshi was in possession of the land in dispute and that Pola was interfering with such possession by various acts which are mentioned in the order,
5. We do not think it necessary in the peculiar circumstances of the present case to interfere with the order of the Sub-Divisional Magistrate. We need not consider whether the want of a preliminary order under Sub-section (1) of Section 145, Cr.PC amounts to an irregularity of an illegality which can be cured by the application of Section 537, Cr.PC Chitaley and Rao in their commentary mention the various rulings in favour of the view that the non-compliance of the provisions of Sub-section (1) being a violation of a mandatory provision of law, renders all subsequent proceedings void and without jurisdiction. But their own views are contrary to those decisions and they are based upon the Privy Council case of 'Abdul Rahiman v. Emperor' that the jurisdiction of the Magistrate does not depend upon how he proceeds. The learned commentators say:
It is submitted that this view is not correct on principle. The jurisdiction of the Magistrate does not depend upon how he proceeds. As pointed out by their Lordships of the Privy Council in 'Abdul Rahiman v. Emperor (A)', 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. The only test therefore in such cases is to see whether the parties have been prejudiced by reason of such irregularity or omission (see Section 537); if in spite of a failure to conform to the provisions substantial justice has been done, the defect is cured under Section 537 and the final order will not be interfered with in revision.
(See Cri. Pro. Code by Chitaley and Rao, 1950 Edn., at page 775). We need not however decide this question. We refuse to interfere on the broad principle that even if there is an error of law, the Additional Sessions Judge is not bound to make a reference nor is the High Court bound to interfere in revision where substantial Justice has been done in spite of such error of '.aw. We may refer to the commentary of the said learned authors at page 2432 where they state:
A reference should not ordinarily be made except on matters involving questions of law, and even in such cases, only if the error of law is of such a character that it is necessary in the interests of justice to call for the interference Of a higher authority.
At pages 2438 and 2439 the learned authors state:
That the object of revisional jurisdiction is to confer upon superior criminal Courts a kind of paternal or supervisory jurisdiction, in order to correct 'miscarriage of justice' arising from misconception of law, irregularity of procedure, neglect of proper precautions, or apparent harshness of treatment which has resulted, on the other hand, in some injury to the due maintenance of law and order, or on the one hand in some injury to the due maintenance of law and order, or on the other hand, in some undeserved hardship to individuals. So the main question which the High Court has to consider in revision is whether substantial justice has been done. Where, therefore, there has been no 'failure of justice' the High Court' will not interfere In revision, even though there may have been an irregularity or an: impropriety in the proceedings of the lower Court.
In the present case there has been no failure of justice. On the contrary, we are convinced that substantial justice has been done. The learned Sub-Divisional Magistrate has given ample opportunity to the original opponent Pola to lead evidence on the question of possession and as regards the acts of interference by him and after considering such evidence he has come to the conclusion as to the necessity of passing an order Under Section 145. It would have been better for him, when he received the papers from the District Magistrate, to have gone through them and applied his mind and himself passed the order under Sub-section (1) of Section 145, and not merely relied upon the order of the First Class Magistrate, which was apparently passed without jurisdiction.
There appears to have been a bona fide mistake on his part, but nevertheless the proceedings before the First Class Magistrate were before him and he has continued them giving opportunity to the parties to adduce their evidence on the points involved to be decided. No objection appears to have been taken before him by the original opponent Pola. If we set aside the-order as suggested by the Additional Sessions Judge, it may be gross injustice to the original applicant Velji Narshi, as a fresh application might be time barred. On the other hand, if we remand the case to the Sub-Divisional Magistrate to record a preliminary order under Sub-section (1) of Section 145, Cr.PC it would be a formality, which will not be of any material help, as the Sub-Divisional Magistrate has already gone into the evidence of both parties. without any objection and has already decided the question of possession and the acts of interference which are likely to cause breach of peace.
6. In the peculiar circumstances of the case, therefore, we do not think that this defect should make us interfere in exercise of our powers of revision, as we are of the opinion that substantial justice has been done. The1 learned Sub-Divisional Magistrate has clearly come to the finding that the original applicant Velji Narshi was in possession of the land and that this possession was being interfered by certain acts which are mentioned In his order and from which we can legitimately infer that there was a likelihood of breach of peace. Under the-circumstances, we reject this reference.