Trevelyan and Rampini, JJ.
1. We have heard together these two rules--one granted to show cause why an order under Section 145, Criminal Procedure Code, should not be set aside, and the other referring to the conviction of three men under Sections 143 and 379 of the Penal Code. The charge was in respect of theft of crops on a portion of the land which was in dispute in the 145 section case, and so far as the question of possession of the crops said to have been looted is concerned, it follows that the case is connected to some extent with the Section 145 proceedings. The rule was granted on several grounds, but after hearing the learned Counsel in support of it, we thought that so far as the Section 145 proceedings are concerned there are only two grounds which we have to consider, and we think that on both those grounds the application must be successful. The first ground is this. It is said that the persons before the Court in the 145 proceedings did not include all persons who were concerned in the dispute, and that the real owners of the land adjoining who claimed this land were not parties to the proceedings, the parties being their servants. Now, under Section 145, a Magistrate is bound to require 'the parties concerned' in the dispute to attend his Court. The words 'parties concerned' do not, we think, necessarily mean only the persons who are disputing. They include persons who are interested in the dispute, persons who claim a right to the property which is in dispute. That, we think, is clear, because if only the persons who are disputing were to be made parties it might turn out that the Court would be unable on their evidence to come to any conclusion, and would make an order under Section 146, which would have a distinctly prejudicial effect on a person who may have a real claim to the land and may be in possession and yet may not be disputing or committing any act likely to cause a breach of the peace We think the construction that the words 'parties concerned' in Section 145 include persons who are interested in, or claiming a right to the property, is the reasonable construction, and 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. On that point we think the applicant must succeed, and that the Magistrate was wrong in not doing what we think the law required him to do.
2. There is another ground upon which we think the order must be set aside, and that is this. It appears that an application was made to the Magistrate to subpoena a number of witnesses whom the second party wished to be examined, but that the application was refused. Our attention has been called to a case of Hurendro Narain Singh Chowdhry v. Bhobani Prea Baruani I.L.R. 11 Cal. 762 decided by Prinsep and Grant, JJ., who considered that in a Section 145 proceeding, although it is a case in which the evidence is to be recorded as a summons case, it is the duty of the Magistrate to issue such processes unless he shows good reasons to the contrary. Here the application was made seven days before the case of the second party began. There was, therefore, ample time apparently to serve the processes upon some of the witnesses. At any rate, it is impossible to say that this application for process was made for the purpose of delay, and we think the second party was entitled to have a chance of having their witnesses in Court. On these two grounds we think that the order is bad and must be set aside.
3. The question then that remains is whether we ought to direct a fresh trial setting aside these proceedings from the beginning, or allow these proceedings to continue. We think in this case it would be better to set the whole proceeding aside. The primary object of Section 145 is the preservation of peace in the district. If, at the present moment, there is any likelihood of the peace being broken, it is competent to the Magistrate to institute fresh proceedings under the section. If, as a matter of fact, there is no prospect of the peace being disturbed, there seems to be no necessity why these proceedings, which have been going on for some time, should continue. We therefore set aside the order and proceedings under Section 145.
4. (Their Lordships then considered Rule 109, and in that case eventually set aside the conviction and ordered a new trial.)