M.A. Shaiimiki, J.
1. This is a reference made by the Additional District Magistrate, Baramulla, recommending that the order of the Munsiff Magistrate, Hand-ware, dated 15th June, 1956 under the second proviso to Sub-section (4) of Section 145, Cr, P. C, attaching the tree in dispute in. the proceedings initiated by Sona Mir, non-applicant, against the applicants be set aside on the ground that the trial Magistrate had not drawn up the preliminary order contemplated by Sub-section (1) of Section 145 and no request for the order of attachment had been made by the non-applicant.
2. We have been taken through the facts of this reference by the learned Advocates appearing on behalf of the parties and we hare heard the arguments. We have perused the order made by the Muncie Magistrate, Soporo, with, great care and we agree with the finding of the learned Additional District Magistrate that the Munsiff Magistrate has failed to draw up a preliminary order in terms of Sub-section (1) of Section 145, Cr.PC The learned Counsel for the non-applicant has drawn our attention to a Division Bench judgment of this Court dated 13th March, 1957, in Sarrjhi v. Tirath Ram, Criminal Ref No. 44 of 1956 (J and K) (A).
In this case, it appears, the preliminary order drawn up by the trial Magistrate was not strictly in accordance with the provisions of Sub-section (1) of Section 145, Cr.PC but the order though defective in so far as it was not in conformity with the provisions of the Sub-section was there and it could not be said that no order at all had been made under the Sub-section. There is clearly a marked difference between. the two cases, in one of which a preliminary order under Sub-section (1) of Section 145, however, defective it may be, is made and a direction for issuing notice to the parties concerned in the dispute is given and the other in which no such order has at all been made and no direction for issuing a notice to the other party is given.
All that in Sanjhi v. Tirath Ram (A) a Division Bench of this Court has held is that a preliminary order which is not in strict conformity with the provisions of subs. (1) of Section 145, Cr.PC does not vitiate the order unless it be shown that it has occasioned prejudice to the other side. One of us, my brother Kilam J., hyssop taken the same view in his judgment in Alam Bhat v. Sultan Ganai, Cri. Ref. No. 6 of 1957, D/-4-6-1957 : A.I.R. 1957 J and K 46 (B). In that case the Sessions Judge, Kashmir, who had invade the reference had stated that no preliminary order in terms of Sub-section (1) of Section 145 was in existence but in disposing of this reference Kilam J. did not agree with the Sessions Judge that no preliminary order had been made. It was held that there was a preliminary order in that case, though, it had not been drawn up in a proper legal form.
In the present case we find that no preliminary order has been drawn up by the trial Magistrate at all. He has simply repeated the contents of the application under Section 145, Cr.PC made before him by the non-applicant and then has directed that under Sub-section (4) of Section 145, Cr.PC the police should attach the tree. This is no compliance with the provisions at Section 145(1), Cr.PC Where the preliminary order made under Sub-section (1) of S- 145 is defective the defect can be cured under Section 537, Cr.PC But where the order does not exist at all it is difficult to visualize how the defect can be cured under Section 537, Cr.PC the relevant portion of which reads as follows:
Subject to the provisions hereinbefore contained no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account
a) of any error, omission or irregularity in. the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before... under this Code... unless such error, omission or irregularity has in fact occasioned a failure of justice.
A bare perusal of this provision shows that it is only an error, omission or irregularity in the order that can be cured under Section 537 (a). But where no order has been drawn up in terms of sub-s, (1) of Section 145, Section 537, Cr.PC would not be applicable and the invalidity is incurable. Neither of the two judgments referred to above runs counter to this proposition. There is another substantial reason why no action under Sub-section (4) of Section 145, under the second proviso of which the order of attachment has been made by the trial Magistrate in this case, can be taken by a Magistrate until he has passed a preliminary order under Sub-section (1) of Section 145. For this a reference may be made to the provisions of S..145, Cr.PC It is unnecessary to reiterate the relevant subsections in this judgment. It would be sufficient to indicate here that it is only after the Magistrate has complied with the provisions of Sub-section (1) of Section 145 that the provisions of Sub-section (4) will come into play. The provisions of this subsection begin thus:
(4) The Magistrate shall then without reference...decide whether any and which of the parties....
and the power of the Magistrate to issue order attaching the subject of the dispute in the case, which he considers one of emergency, is contained in the second proviso to this Sub-section and, therefore, in our opinion this power cannot be exercised unless the Magistrate has made some sort of compliance with the provisions of Sub-section (1) of Section 145. The failure to draw up the preliminary order in itself will cause prejudice to the other side.
3. Apart from the fact that the Magistrate has not drawn up a preliminary order in accordance with the provisions of Sub-section (1) of Section 145, Cr. P. C we also agree with the learned Additional District Magistrate that the order of attachment is also improper on the ground that no prayer for attachment had been made by the non-applicant and the Magistrate has in this case acted absolutely summate. The learned Counsel for the non-applicant has sought the support of one witness, Moh'd Maqbul, in this case who has stated that if the applicants are not bound down there is a possibility of a breach of the peace. Even this statement does not show that the case was one of emergency. But whatever this witness may have said there was no request made by the non-applicant for the attachment of the tree and the Magistrate even if he wanted to use his powers under second proviso to Sub-section (4) of Section 145 should have recorded his finding that the case was one of emergency and that the circumstances of the case were such that it was not possible for him to direct issuing of notice to the other side before making that order.
In this connection a reference may be made to my judgment in Qadir Bungroo v. Subhais Shigan, Criminal Ref. No. 8 of 1957 : A.I.R. 1957 J and K 51 (C). I adhere to the view taken by me in that case. It is clear that the second proviso to Section 145 (4) confers extraordinary jurisdiction upon a Magistrate and this power has got to be exercised by a Magistrate with great care and caution. Where a Magistrate is satisfied that in view of imminent danger of breach of the peace an order of attachment of the subject-matter of] the dispute should be issued without hearing the other side, he can certainly issue such an order but it should be apparent on the face of the order that the Magistrate was so satisfied and that there was a plausible case for exercising extra. ordinary powers vested in the Magistrate under this proviso without issuing notice to the other side.
4. For the reasons given above we accept the reference made by the Additional District Magistrate, Baramulla, and set aside the order of attachment passed by the MunsifF Magistrate, Sopore. The trial Magistrate shall proceed to aetermine the proceedings under Section 145, Cr, P.C., according to law.