1. It was a reference by the Sessions Judge of Bhagulpur submitting the case to the High Court lender Section 438 of the Criminal Procedure Code for orders.
2. The letter of reference or the Sessions Judge was as follows:
The present petitioners appear to have been parties with others to two proceedings taken under Section 145 Criminal Procedure Code, before the Deputy Magistrate of Supoul of (sic) about the same time. The proceedings in respect of which this application is made related to land in Daharia, and the other case related to lands in Kusaha. The game persons were the parties in both cases. In this case the petitioners were made the first party and Bajendro Narain and others were made second party, and in the Kusaha case vice verse.
Both cases were fixed for hearing about the same time, this case being fixed for the 24th January last, and the other case for the 27th January 1896.
When this case was called on for hearing the petitioners had not their witnesses ready, but had their witnesses present in the case of Kusaha. They applied for an adjournment, alleging that they were under the influence of a bond fide mistake that the Kusaha case would be taken up that day, and the Daharia case on the 27th January. The Deputy Magistrate refused the application. Another petition was put in asking for a day's adjournment, which was also refused. The Deputy Magistrate disposed of the case after taking the evidence of the second party, Rajendro Narain, only. He examined the petitioner, Lachmi Narain, who said he had been misinformed by a servant as to the date, and he also examined the petitioner's mukhtear, who said he had known that the 24th January was the date fixed for the Daharia case, but his clients had not been to him to ask him.
In support of this application it is urged that this case should be sent back to the Deputy Magistrate for further inquiry:
(a) Because petitioners were under the influence of a bond fide mistake as to the date, and the Deputy Magistrate ought not to have refused their application for an adjournment;
(b) Because, when from the evidence of the other party it appeared that Jugdeo Jha was interested in the land as a proprietor, the Deputy Magistrate ought, following the ruling in Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 to have granted the application of the petitioners and to have issued a notice to Jugdeo Jha, so that the case might have been heard in his presence, or he might have had an opportunity, as a party to the proceeding, of putting in any objection; and
(c) Because the order contains no specification of the lands in dispute, and while the proceeding drawn up by the Deputy Magistrate specified 3 bighas in 2 plots as the lands in dispute, the witnesses for the other party gave evidence with regard to 16 or 17 bighas.
In opposition it is urged that the objection to the trial on the 24th January was not bona fide, and that the petitioners' only object was to get the other case tried first, so that the other party might first give their evidence. But this argument cannot apply to the application for one day's adjournment.
It is also urged that the land referred to in the proceedings of the Deputy Magistrate is included in the 16 or 17 bighas deposed to by the witnesses. This may be so, but there is no proof that it is the case.
It is not improbable that the Deputy Magistrate is right in holding that the petitioners wished to harass the other party by frequent postponements, but I do not think that this was sufficient reason for his refusal to grant the one day's adjournment prayed for, and I am far from being satisfied that the petitioners were not under a bona fide mistake as to the dates fixed for the two cases. The description of the present case in the order sheet seems to have been confused in the course of the proceedings. In my opinion the Deputy Magistrate ought to have granted the adjournment prayed for, so as to have enabled the petitioners to produce their evidence.
The objection based on the ruling in Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 is also valid. When it came to the knowledge of the Deputy Magistrate that Jugdeo Jha was interested in the lands in dispute be ought to have made him a party to the proceedings and issued a notice to him.
And lastly the objection as to the discrepancy between the amount of the lands said to be in dispute in the proceedings and deposed to as being in dispute by the witnesses appeal to be a good one, and the absence of any specification of lands in the order leaves it in doubt whether the order refers to 3 bighas of land or 16 or 17 bighas.
For the above reasons I do not think that the order of the Deputy Magistrate can be upheld, and I consider that a further inquiry into the case is necessary. The order of the Deputy Magistrate should, in my opinion, be set aside, and the case should be remanded to the Deputy Magistrate to make a further enquiry into the matter, and to proceed to dispose of the case according to law. Jugdeo Jha should be made a party to the proceedings and notice issued to him; and opportunity should be given to both the present parties to the proceedings to produce evidence to support their allegations that they are in possession of the 3 bighas of land, which from the proceeding of the Deputy Magistrate appear to be in dispute.
3. The material portion of the explanation of the Deputy Magistrate was as follows:
Regarding the ruling in Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 I beg respectfully to state that the said judgment lays down that it is the duty of the Magistrate on the materials before him to ascertain, so far as he can, who are the persons interested in, or claiming a right to, the property in dispute, and to give notice to them all, so that the whole matter, so far as his Court is concerned, may be disposed of in one proceeding.' When the proceedings were instituted by me, and even when written statements were filed by both parties, there was no mention either in the police report or in the pleadings of either party that Jugdeo was interested in the land. It was only when the case was taken up for final disposal that the fact came to my notice. I beg respectfully to submit that the ruling requires me to make parties only those persons who appear to be interested in the land in dispute from the materials before me before the case is actually taken up for final disposal. The case remained pending in my file for full throe months, but never before the last day of hearing was it brought to my notice that Jugdeo was a party interested.
Regarding the specification of the lands in dispute, I beg to state that as the descriptions of the land furnished by the parties and the Police were not satisfactory, I myself and both the parties went to the land in dispute together and fixed locally the boundaries of the land in dispute. Hence there could be no doubt about the identification of the land actually in dispute.
4. The order of O'Kinealy, Banerjee and Hill, JJ., referring the case to a Full Bench was as follows:
5. This is a reference made by the Sessions Judge of Bhaugulpur under Section 438 of the Code of Criminal Procedure.
6. The original case was one under Section 145 of the Code, and was disposed of by the Deputy Magistrate of Supoul. The Judge in his reference recommends us to set aside the order of the Deputy Magistrate and remand the case to him to make a further enquiry into the matter and decide the case according to law. He further recommends that we should in conformity with the decision arrived at in the case of Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 direct the Deputy Magistrate to make one Jugdeo Jha a party to the proceedings and have the question of actual possession decided in his presence.
7. Admittedly there is evidence that Jugdeo Jha is interested in the land which is the subject of dispute, but not otherwise concerned with the dispute.
8. The reference turns upon what is the meaning of the words 'the parties concerned in such dispute' in the first part of Section 145 Section 145 differs from the corresponding section of the previous Code of Criminal Procedure in so far as the words the parties,' which occur in Section 145 were 'all the parties' in the corresponding section of the previous Code. In the case of Gobind Chunder Ghose v. Anundo Chunder Sircar 18 W. R. Cr. 54 it was held that the only parties entitled to notice were those concerned (sic)the dispute likely to cause a breach of the peace. In the case of In the matter of the petition of Kunund Narain Bhoop I.L.R. 4 Cal. 650, the same view wag adopted, and it was further decided that there was no provision in the Code of Criminal Procedure allowing an intervenor to come in in the middle of the proceedings. In the case of Obhoy Chandra Mookerjee v. Mohamed Sabir I.L.R. 10 Cal. 78 the same course of decisions was followed, and the Criminal Courts were directed not to lend themselves to the decision of matters of simple possession which were properly cognizable by Civil Courts, and also to take care that before they assumed jurisdiction to decide any question under Section 145, the foundation of their jurisdiction, that is to say, a dispute likely to cause a breach of the peace, did exist. A different view of this section has been taken by another Divisional Bench of this Court in the case of Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 to which the Sessions Judge has drawn our attention in his letter of reference. In that case it was held that the words 'the parties concerned in such dispute' are not limited to persons who are disputing, but include persons who are interested in, or claiming a right to, the property in dispute. It further laid down the ruling that it is the duty of a Magistrate to ascertain, as far as he can, on the materials before him, who are the persons interested in, or claiming a right to, the property in dispute, and to give notice to them all, so that the whole matter may be disposed of in one proceeding.
9. Two of the Judges constituting this Divisional Bench do not acquiesce in this extended meaning of the words 'the parties concerned in such dispute.' They think that the view taken by the Judges in the cases previous to the one last referred to is correct. One of the Judges of this Bench considers that the meaning attached to those words in the case last referred to, that is, the case of Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 is correct. This Divisional Bench therefore refers the case to a Full Bench for such orders as to the said Full Bench may seem fit.
10. Babu Umakali Mukerji and Babu Rarendra Narayan Slitter for the Second Party.
11. Babu Saligram Singh for the First Party.
12. Babu Umakali Mukerji.---Section 145 occurs in Part IV of the Criminal Procedure Code which deals with 'Prevention of Offences.' Therefore only persons actually disputing or offending against the public peace are meant to be included by the words 'parties concerned' in Section 145. The Magistrate has no power to introduce as party any person not mentioned in the preliminary proceedings: Bechu Sheikh v. Deb Kumari Dasi I.L.R. 21 Cal. 404; nor can he allow intervenors to come in; In the matter of the petition of Kunund Narain Bhoop I.L.R. 4 Cal. 650. In order to be made a party a person should have an interest in the subject-matter and be also actually disputing: Gobind Chunder Ghose v. Anundo Chunder Sircar 18 W. R. Cr. 54. The case of Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 does not lay down anything different. The words 'forbidding all disturbance, &c.;,' have been construed to affect only the persons actually on the record; In the matter of Gopal Burnawar 3 B. L. R. A. Cr. 13 followed in Queen-Empress v. Kuppayar I.L.R. 18 Mad. 51.
13. Babu Saligram Singh, contra.---The words 'parties concerned' should be construed to mean those actually engaged in the dispute, as well as those interested in the result of the dispute. The final order of the Magistrate should not be restricted so as to affect only those persons who are mentioned in the initiatory proceedings: Bechu Sheikh v. Deb Kumari Dasi I.L.R. 21 Cal. 404. The judgment of Rampini, J., in that case points out that the words 41 none of the parties 'in Section 146 were substituted nor' neither of the parties ' in order to obviate the objection of Ainslie, J., In the matter of the petition of Kunund Narain Bhoop I.L.R. 4 Cal. 650. See also Queen-Empress v. Gobind Chandra Das I.L.R. 20 Cal. 520.
Petheram, C.J., O'Kinealy, Macpherson, Trevelyan, J. and Banerjee, JJ.
14. The main question in the reference by the Sessions Judge, and the only one which has occasioned the reference to a Full Bench, is whether the Deputy Magistrate ought to have issued a notice to Jugdeo Jha on the ground that he was interested in the land in dispute as a proprietor? We are clearly of opinion, not only that the Deputy Magistrate ought not to have issued such notice, but also that he had no power to issue such notice in the proceeding which was before him. Section 145 of the Criminal Procedure Code only empowers a Magistrate to decide whether any, and which, of the parties, upon whom a summons is served under the first paragraph of that section, is in possession of the subject of dispute.
15. The first paragraph of Section 145 empowers the Magistrate to summon parties if he is satisfied that there is a dispute likely to cause a breach of the peace, and that they are concerned in such dispute. A number of consistent decisions of this Court have held that the Magistrate's jurisdiction to determine, questions of possession is dependent upon his being satisfied that there is a dispute likely to cause a breach of the peace. It would follow from these authorities that the jurisdiction to require particular individuals to attend the proceedings would equally depend upon the Magistrate being satisfied that they were concerned in the dispute. The Magistrate's duty before he initiates proceedings is not only to be satisfied that a dispute exists but to ascertain as far as possible who are 'concerned in the dispute' (an expression the meaning of which it is not necessary for us in the view which we take of the facts to determine in this case) so that they may be required to attend and the question of possession may be as far as possible settled.
16. There is no power during the course of the proceeding to add parties unless in the initial proceeding the Magistrate is satisfied that they are concerned in the dispute any more than there is a power to substitute parties.
17. If in the course of the proceeding it appears to the Magistrate that it is absolutely necessary that other parties should be required to attend, and he is satisfied that they are concerned in the dispute, the only course open to him is, if he be empowered in that behalf, and he is satisfied that danger of breach of peace still exists, to initiate a new proceeding.
18. The actual decision in the case of Ram Chunder Das v. Monohur Roy I.L.R. 21 Cal. 29 is not inconsistent with this view; but if the learned Judges in that case intended to hold that a Magistrate could, in the course of the hearing without a fresh initial proceeding, issue notices to parties concerned, we think the Judges were wrong in entertaining such an opinion.
19. In the present case Jugdeo Jha was a minor. Although it is said that be was interested in the land as proprietor, it does not appear to what extent, if any, he was concerned in or with the dispute and there was nothing before the Magistrate when he initiated the proceeding to indicate that Jugdeo Jha was concerned in the dispute in any sense of the words.
20. Two other small questions arise in this matter. First, whether the Magistrate ought to have postponed the case. Second, whether his order is indefinite. As to the first question the Sessions Judge considers that it is not improbable that the Deputy Magistrate is right in holding that the petitioners wished to harass the other party by frequent postponements. This is sufficient reason to justify us in refusing to interfere on this ground.
21. The remaining ground is disposed of by the third paragraph of the Deputy Magistrate's explanation.
22. In the result we decline to interfere.