1. This case comes before us on a reference made by the Sessions Judge of Sylhet under the provisions of Section 438, Criminal Procedure Code:
2. In a proceeding under Section 145, Criminal Procedure Code, the Sub-Divisional Magistrate declared the first party to be in possession of the disputed land, by an order dated March 25, 1924. The learned Judge recommends that this order be set aside on the ground that the Magistrate, after making a local enquiry, did not record a Memorandum of the relevant facts, which he observed. The rule which requires such a memorandum to be made was enacted by Act XVIII of 1923, and is contained in Section 539 B of the Code as it is after amendment. It does not, however, introduce any new principle, for this Court had often laid down that a memorandum should be prepared, so that both sides to an enquiry or trial might know what the Magistrate during his enquiry had noticed or failed to notice.
3. It is the form of the rule that creates difficulty. It runs: ' Any Magistrate may ...and shall record a memorandum...Such memorandum shall form part of the record of the case.' The learned Judge refers to a decision by a Divisional Bench of this Court in the case of Hridoy Govinda Sur v. Emperor : AIR1924Cal1035 , where it was held that the rule contained in the second clause of the section, that is the rule which directs that the memorandum shall form part of the record, was mandatory, and that failure to comply with it was an illegality and not an irregularity which can be cured. With all deference to the learned Judges I venture-to doubt whether that result does follow from applying the epithet mandatory. The decision, however, was in a trial for an offence, whereas in the case before us there was no accused person before the Court; and the only question was which of two parties was in possession of land, and which should shoulder the burden of instituting a civil suit. In such a proceeding I think that we are entitled to consider what action the petitioners took in regard to the writing of a memorandum. I have already pointed out that the requirement of Section 539-B introduced no new principle. The local enquiry Was made in the presence of the petitioner's pleader: he knew exactly where the Magistrate went, and the points to which his attention was drawn. The petitioners through their pleader must be assumed to be familiar with pronouncements so often made by this Court that a memorandum should be recorded. They did not however, ask the Magistrate to record a memorandum, or to attach a memorandum to the record or to give them a copy. They were content to go on to judgment without seeing the memorandum, or even ascertaining whether one had been made. I do not think that they can bow be allowed to say that for this formal defect the proceedings should be set aside, unless they can show that the Magistrate's omission has caused them prejudice.
4. As to prejudice, It is quite true that the learned Magistrate referred to what he had seen, and to the conclusions which he drew, but those remarks are redundant; for the findings on the evidence adduced by the parties are summed up in these words:
5. I can say with conviction that I consider the first party's evidence to be true, and I can say with even more conviction that I consider the second party's evidence to be a mess of lies and fictions supported by documents which must have been specially made for the occasion.'
6. In these circumstances I hold that sufficient reason has not been made out for interference, and I reject the reference.
B.B. Ghose, J.
7. I agree that this reference should be rejucted. I only desire to add that there is no universal rule that disobedience of a mandatory provision in a statute has the consequence of nullification of all proceedings irrespective of any question of prejudice. Whether a mandatory provision is imperative or only directory depends upon a consideration of various circumstances. It seems to me that the observations in Hridoy Govinda v. Emperor : AIR1924Cal1035 are too wide.