1. On the 23rd February 1878 the Extra Assistant Commissioner of Goalpara, from proceedings before him, was led to the belief that there was a likelihood of a breach of the peace in consequence of a dispute about certain lands between Rajah Kunund Narain Bhoop on one side, and Puddo Kishore Burmah and another on the other side. He consequently directed that proceedings should be held under Section 530 of the Criminal Procedure Code, and recording a proceeding reciting the existence of this dispute, he caused notice to be given to the parties above named.
2. Those persons in the end came to an amicable settlement of their dispute; but, in the meantime, shortly before this settlement was effected, another party, Gopinath Chuckerbutty, came in on 9th May, and put forward a claim to the possession of a portion of the land covered by the Magistrate's notice.
3. Eventually an order was made by the Magistrate on 24th June declaring Gopinath to be the party in possession.
4. The Rajah has applied to this Court to quash this order as made without jurisdiction, and the only question we have to consider is this one of jurisdiction.
5. In many cases it has been hold that a proceeding, such as is required by Section 530, is a necessary preliminary, and Mr. Justice Norman, in the case of Kashi Kishore Roy v. Tarini Kant Lahori (3 B.L.R., Cr., 76), points out that one object of this is to prevent a Magistrate from rashly interfering with questions of possession which should ordinarily be decided by the Civil Courts, except in cases where a breach of the peace is apprehended, and where it is necessary, for the preservation of public order, that steps be taken in the Criminal Court.
6. The power given to a Magistrate to make a binding declaration as to the possession of property is an exceptional one, and is conferred in a chapter (xl) forming a portion of Part XI of the Code, which is entitled 'Preventive jurisdiction of Magistrate.' Section 530 limits the exercise of this power to cases in which the Magistrate is satisfied that a dispute, likely to induce a breach of the peace, exists, and it is this likelihood with the consequent necessity for immediate action which alone warrants action by the Magistrate under chapter xl, and the Magistrate is obliged to certify the grounds on which he believes in the existence of a likelihood of a breach of the peace by recording them in a proceeding.
7. The practice under Section 318 of the Code of 1861 and Section 530 of the present Code has, as we believe, been uniformly to issue notice to certain parties indicated to the information on which the Magistrate's action is based. The law does not provide for a public notice or proclamation calling upon all parties concerned to attend the Magistrate's Court. It is true that by the words 'shall call upon all parties concerned in such dispute' no particular mode of giving notice is expressly prescribed, but, nevertheless, we are of opinion that the language of the section indicates that the notice shall be to known individuals, The Magistrate must be satisfied that there is a dispute serious enough to be likely to lead to a breach of the peace. Although the explanation in no way restricts him in reference to the character of the information upon which he proposes to take action, yet it is obvious that the information must at least indicate the disputing parties. If the Magistrate is unable to point to any one or some persons on one side as said to be engaged in a dispute with one or more persons on the other, it is difficult to understand how he can reasonably declare himself satisfied of the existence of a dispute, and it is only when satisfied of the existence of a dispute that he is to call upon all parties concerned in such dispute: this clearly shows that the call is addressed to individuals, and not to the public.
8. Baboo Gooroo Das Banerjee relied upon the words 'shall call upon all persons concerned' as showing that the law contemplated something in the way of a general citation, and supported this view by referring to the last words of the section 'forbidding all disturbance of possession until such time;' but in the absence of any specific declaration that the procedure is to be by a public citation, we think the latter words can only be taken as applying to the parties of whose dispute the Magistrate has knowledge.
9. This view is confirmed by the language of Section 531: 'If such Magistrate decides that neither of the parties is in possession or is unable,' &c.; Had it been intended that the declaration should operate as universally binding, the words would have been 'that no party is in possession.' The section as it stands shows that the Magistrate's order is to be directed to those persons actually before him (or who, having been called upon, have failed to appear).
10. In this view of the law it seems to us that the proceedings taken after the compromise were not properly taken. There is no provision in the Criminal Procedure Code for allowing an 'intervenor' to come in the middle of proceedings held by a Magistrate under Section 530. As to such third party the Magistrate has no information of any dispute likely to lead to a breach of the peace between him and any one else, and, therefore, the only ground upon which he can enter upon an enquiry as to the possession of such third party at the date of the commencement of the pending proceedings is wanting. As to anything of later date, he may take such steps in separate proceedings as circumstances call for and the law allows.
11. The order of the Extra Assistant Commissioner, made on the 24th June 1878 in favour of Gopinath Chuckerbutty, is set aside, and the whole proceedings as regards him are quashed. As regards the original parties before the Magistrate, no order is requisite, inasmuch as the dispute between them, is at an end.