P.N. Mookerjee, J.
1. This Rule is directed against an order quashing certain proceedings under Section 145 of the Criminal P. C. The proceedings have been quashed by the learned Magistrate on the ground that the only rival to the petitioner's claim to possession of the disputed property has not been legally made a party to the said proceedings. The Rule has been opposed by opposite party No. 4 and a report has also been received from the trying Magistrate through the learned District Magistrate of 24-Parganas containing some grounds in support of the order of quashing.
2. The relevant facts lie within a short compass and are as follows.
3. On April 12, 1951, the petitioner, Sk. Meher AH, applied before the learned Sub-Divisional Magistrate at Alipore for the drawing up of proceedings under Section 145 of the Criminal P. C. against opposite parties Nos. 1 to 3 and others (not specifically named) in respect of the disputed property situate at Behala, upon the allegation 'inter alia' of an apprehension of imminent breach of the peace.
4. On the same day the learned Sub-Divisional Magistrate was pleased to direct the Officer in charge, Behala Police Station, to enquire and report by May 22, 1951, and in pursuance of the said direction the said Officer submitted the following report, namely:
'Sir, I beg to report that I made local inquiry and found the case true. One Mohim Ghosh appeared before me and claimed the building to be his own but he failed to produce any document. He left the place leaving one durwan.'
5. Thereupon on May 22, 1951, the learned Sub-Divisional Magistrate recorded the following order, namely:
'Seen report. Ask both parties to appear and file written statement under Section 145, Criminal P. C. showing the respective claims to possession of the land in question by 11-6-51.'
6. Pursuant to the above order notices were issued and served upon opposite parties Nos 1 to 3 and also upon Mohini Mohan Ghose, opposite party No. 4, above named. In the said notices the petitioner was described as the first party and all the opposite parties to this Rule, namely, opposite parties Nos. 1 to 4 above named were described as the second party and they were asked to appear before the learned Sub-Divisional Magistrate and put in their written , statements by June 11, 1951.
7. On this latter date, namely, June 11, 1951, both parties, that is the petitioner and the opposite parties Nos. 1 to 4 above named, appeared before the learned Sub-Divisional Magistrate who then transferred the case to Sri S. L. Banerjee, Magistrate, first class, for disposal, directing the parties 'to file written statement there'.
8. By his order dated June 11, 1951, Sri S. L. Banerjee fixed June 19, 1951 for appearance and before him the first party filed his written statement on the said date, namely, June 19, 1951, but the second party not having appeared before him on that day nor having filed any written statement, the case was adjourned to July 9, 1951 for evidence of the first party.
9. On July 9, 1951 the second party (opposite parties Nos. 1 to 3 and also opposite party No. 4 abovenamed filed written statements and prayed for time whereupon the date was shifted to July 26, 1951 and on this latter date the case was again adjourned to August 17, 1951 and thereafter again to August 18, 1951 for evidence of the first party.
10. On August 18. 1951 and on the next date, namely, August 21, 1951, four witnesses of the first party were examined and cross-examined and eventually the case was adjourned to September 7, 1951. When the case was taken up on this latter date, namely, September 7, 1951, the second party raised an objection that the proceedings could not go on and must be quashed on the ground that Mohini Mohan Ghose, opposite party No. 4 above-named, had not been legally made a party thereto. The learned Magistrate upheld this objection upon the finding that the second party (opposite parties Nos. 1 to 3 above named) did not lay any claim to the disputed property and the only claimant Mohini Mohan Ghose (opposite party No. 4 abovenamed) had not been legally made a party to the proceedings. The learned Magistrate, accordingly, by his order of that date quashed the proceedings, directing the first party to file a fresh proceeding making Mohini Mohan Ghose as one of the second party. Against this order the present Rule has been obtained.
11. In my opinion, this Rule ought to succeed. Upon the materials to which reference has been made above it is idle to contend that Mohini Mohan Ghose has not been legally made a party to the proceedings in question. It is true that in the original petition, filed on April 12, 1951, he was not specifically named, but in the police report he was named as the only rival claimant and upon that the learned Sub-Divisional Magistrate issued notice upon him and directed him to 'file written statement'. Thereupon he actually appeared before the learned Sub-Divisional Magistrate and also before the transferee Magistrate Sri S. L. Banerjee and filed his written statement and also took active part-in fact he was the only contesting party-in the cross-examination of the first party's witnesses. In such circumstances, it is not, in my opinion, open to any one-far less to the party, himself, namely, Mohini Mohan Ghose-to contend that Mohini Mohan Ghose was not legally made a party to the proceedings in question and the learned Magistrate was wrong in quashing the said proceedings on such objection.
12. I shall now briefly notice two new contentions raised before me on behalf of the contesting opposite party Mohini Mohan Ghose. In opposing this Rule his learned Advocate contended that in the first place there was in law no proceeding either before the learned Sub-Divisional Magistrate or before the learned transferee Magistrate, as the learned Sub-Divisional Magistrate had not drawn up any proceedings under Section 145 of the Code of Criminal Procedure and as, therefore, the order of transfer was also bad and nothing was in law transferred to Sri S. L. Banerjee who had thus no legal or valid proceeding before him. In the second place it was contended that, even assuming that a proceeding was there before the Sub-Divisional Magistrate under Section 145 of the Code of Criminal Procedure, it was not a proper proceeding in law as the learned Sub-Divisional Magistrate had never applied his mind to the materials before him and the satisfaction required under Section 145(1) of the Code of Criminal Procedure was entirely absent. In my opinion none of these contentions is tenable. I need only point out that, from what I have recited in the earlier part of this judgment, it is quite clear that all that was required under Section 145(1) of the Code of Criminal Procedure had been done by the learned Sub-Divisional Magistrate. The requisite satisfaction and order are clearly there and the grounds of satisfaction are also ascertainable from the papers referred to of him. All the necessary elements of Section 145(1) of the Code of Criminal Procedure, as expounded by judicial decisions, are therefore, clearly present and, accordingly, there was a legal and valid proceeding before the learned Sub-Divisional Magistrate. His order of transfer is also perfectly valid and the proceeding before the learned transferee Magistrate was also therefore, not open to objection. These contentions of the contesting opposite party must, therefore, be overruled.
13. In his report to this Court in answer to the present Rule the learned Magistrate has raised certain other grounds in support of his order. It is enough to say that what I have quoted and stated above clearly shows that there is no substance in any of the said grounds and they are, accordingly, of no avail to the contesting opposite ,party, and cannot be accepted.
14. In the result this Rule succeeds, the order of the learned Magistrate dated September 7, 1951, quashing the proceedings under Section 145 of the Code of Criminal Procedure is set aside. The learned Magistrate is directed to proceed with the case according to law from the state at which it was immediately before 7-9-1951. The learned Magistrate is further directed to dispose of the case as expeditiously as possible.
15. Let the records be sent down as early as possible.