Janoki Nath Roy and Another vs The Queen-Empress

This is a case under sec. 145 of the Code of Criminal Procedure regarding the possession of newly-formed chur lands which the Magistrate has under sec. 145 attached. It appears from the police-report that a breach of the peace was imminent in consequence of a dispute regarding these lands between Raja Sreenath Roy, Janoki Nath Roy and Sitanath Roy on the one side, and Harendra Lal Roy on the other side. The Magistrate, in recording his order as required by sec. 145 for the purpose of instituting proceedings, mentioned the name of only Raja Sreenath Roy on one side. Notices were, however, issued on all those persons to attend and "put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." Raja Sreenath and the two others who, it is said, claim to hold these lands jointly as forming a portion of their family estate put in a written statement on behalf of them all.

Before any evidence was taken Janoki Nath Roy and Sita Nath Roy represented to the Magistrate that they had not been made parties to the case under sec. 145, and asked that they might be excluded therefrom. On this the Magistrate recorded the following order;-- "The pleader for the first party (that is Raja Sreenath Roy) says that their case is the same whether Raja Sreenath Roy''s brothers are made parties or not, and leaving it to their option to produce evidence of their possession or not and the matter will be taken up again at the time of passing final orders." On a second petition on behalf of the same persons, the Magistrate passed the following order :--" I have left them (Babus Janoki and Sita Nath Roy) at their option either to appear or not to appear. I will go on with the case with the Raja as first party and Harendra Lal Roy as the second party. I will not hold them as parties." These persons afterwards informed the Magistrate that they had not produced any evidence and that they withdrew from the case. The Magistrate recorded the evidence offered by Raja Sreenath Roy and Harendra Lal Roy and eventually, as already stated, attached the land in dispute. Janoki Nath Roy and Sita Nath Roy have obtained a rule to consider their objection that the Magistrate had no jurisdiction to make this order as against them.

The Magistrate''s judgment deals with this matter in the following terms :-- " Clause (5) of the new Code permits persons other than those noticed to appear in such proceedings, and if they do not appear or choose to withdraw themselves they must abide by the result. It is to be noted also that the two brothers of the Raja live in his mess and belong to his joint undivided family and I think that neither they nor anybody else has any excuse whatsoever." Clause (5) provides that " nothing in this section shall preclude any party so required to attend or any other person interested from showing that no such dispute as aforesaid exists or has existed." The amendment of the previous law consists in the insertion of the words "or any other person interested." But how this is relevant to the present matter docs not appear. Clause (5) does not enable a Magistrate to add parties to the proceedings. It enables a stranger to come in and show that "no such dispute as aforesaid (that is a dispute likely to cause a breach of the peace concerning any land, & c.) exists or has existed." He does not become nor can he be made a party to the dispute which he seeks to show has never existed.

In the next place, the Magistrate should be aware that one of the first principles on which our Courts proceed is that judicial proceedings cannot bind a person who is not a party to them. The Magistrate did not declare that these two persons were parties to the proceedings under sec. 145, but he left it to them to appear or not to appear, in spite of their protest against being considered as parties and their manifest desire to have it declared that they were no parties; and he further declared that he would "go on with the case with the Raja as first party and Harendra Lal Roy as the second party," adding "I will not hold them as parties." In the face of this order it could not be properly held that these persons were bound by the proceedings and by the final order under sec. 146. That before this stage of the proceedings it might have been fairly held that they were parties is not improbable. On this it is unnecessary that we should express our opinion. But that it was never intended that they shall be made parties and that they were never so regarded by the Magistrate seems clear from the Magistrate''s own order just mentioned. That they should have been made parties appear from the police-report on which the proceedings under sec. 145 were'' taken as well as from the Magistrate''s own judgments in which he states that these persons--"the two brothers of the Raja live in his mess and belong to his joint undivided family." Probably the Magistrate means that the land in dispute is claimed as forming portion of the estate held by the Raja and his two brothers as members of a joint undivided family. This fact alone shows that they were equally concerned with the Raja in the result of the proceedings under sec. 145 and they should therefore have been joined with him as parties if it were intended to bind them by the final order. As the case now stands we are bound to hold that the order under sec. 146 is not binding on the Petitioners. It is not improbable that difficulties may thus arise which might have been prevented by the Magistrate. This is one of the many instances, which have come before us, of the lamentable consequences of carelessness which should never have occurred. The carelessness is not in form but in substance, and it is, therefore, beyond our power to rectify. The rule is made "absolute.