1. This is a Reference made by the learned Sessions Judge Srinagar with the recommendation that the order passed in an application under Section 145 of the Criminal P. C. by the learned City Munsiff Magistrate Srinagar be set aside. It is further recommended that the Magistrate be directed to proceed on with the case in accordance with law. The opinion of the learned Sessions Judge may be given in his own words. Says he:
It seems to me that there is no preliminary order in existence as the learned Magistrate was required to draw under Section 145 Criminal P. C.
I might agree with the learned Sessions Judge to this extent that the preliminary order passed by the trial Magistrate has not been drawn in proper legal form. But this alone would not induce me to quash the order and the proceedings taken so far by the Magistrate. The Magistrate has as a matter of fact found that there is a dispute concerning some land. He has also mentioned in his preliminary order that the danger to peace is such as would necessitate the proceedings being taken under Section 145 Clause (1) Criminal P. C. Instead of requiring the parties to submit a written statement with regard to their respective claims, he has recorded that a notice may be given to the non-applicants to submit objections to the preliminary order passed by him.
There are some authorities which lay down that failure to draw a preliminary order or failure to set out the grounds of satisfaction in the preliminary order might render any subsequent proceedings taken by the Magistrate as void and without jurisdiction. But as pointed out by their Lordships of the Privy Council the bare fact of an omission or irregularity in a matter of procedure unaccompanied by any suggestion of probable failure of justice having been occasioned thereby, is not sufficient to invalidate the proceedings.
Even if there has been any deviation from the procedure laid down by law, yet we have got to see whether the parties have been prejudiced by reason of such irregularity or omission. The object of passing a preliminary order is to apprise all persons concerned in the dispute, that the Magistrate is taking action under Section 145, Criminal P. C. to prevent breach of peace and to provide them an opportunity to prove their claim before him. AH that I find in this case is that the Magistrate, while drawing the preliminary order, has used language which is rather vague and not to the point.
For instance, there was no necessity for him to have called the parties to submit objections to the preliminary order. But this by itself would not in any way be said to have caused any prejudice to the parties. The crux of the whole question is that the Magistrate should apprise the parties that he was satisfied that there was a dispute and consequent danger to peace and that he was proceeding under Section 145, Criminal P. C. A slight procedural deviation or omission would not warrant the quashing of all the proceedings taken therein, Such a mistake can be corrected by the Magistrate at any time, and I trust that he will correct the mistake. For this little mistake to make the parties undergo the hardship and inconvenience of a trial from the beginning would not be proper. Under these circumstances, I regret I cannot accept the Reference which is rejected.