Konal Ram vs Rattan Dassi

M.H. Beg, C.J.—This case was referred to a Division Bench at the instance of Ansari, J. of the Delhi High Court (Himachal Bench), when a revision application came up before the learned Judge against a final order passed u/s 145, Code of Criminal Procedure, by a first class Magistrate of Rohru in the District of Mahasu. The learned Magistrate had held Smt. Rattan Dassi, the applicant before him, to be in actual possession of certain plots of land, and, therefore, he directed that her possession should not be disturbed by opposite parties, Konl Ram and Smt. Mani, the parents of Smt. Rattan Dassi, and three other persons who were said to be bent upon ousting, by force, Smt. Rattan Dassi.

It appears that there was a suit filed by Smt. Mani for possession of the land in dispute which was brought to the notice of the Magistrate first class, holding the inquiry u/s 145, Code of Criminal Procedure, before he passed the preliminary order, dated 6-5-1969. The preliminary order mentions that the suit was still pending and clearly gives the ground on which an apprehension of a breach of the peace had arisen due to the attempts of the opposite parties to take illegal possession of the land which was actually said to have been given by Smt. Mani to Smt. Rattan Dassi. The dispute on the question of title to the land was till to be adjudicated upon at the time of the preliminary order, dated 6-5-1969 as well as of the final order dated 22-5-1969 before a civil Court. This, however, did not prevent the Magistrate from passing an order against the party proved to be out of possession so that the possession of the party in actual possession may not be disturbed. The findings of the learned Magistrate about apprehension of a breach of the peace between the parties and the actual possession of Rattan Dassi, whether such possession was legal or illegal, has been shown to be supported by acceptable evidence on record. The correctness of the findings of the learned Magistrate on these questions have not, very properly, been challenged before this Court.

The first question raised was whether the admitted fact that no copy of the preliminary order was directed to be published and affixed in a conspicuous place at or near the subject matter of the suit, as required Section 145, Code of Criminal Procedure invalidated the final order. When this objection was raised before the learned Sessions Judge of Mahasu in a revision application, he, very properly, rejected the contention on the ground that no prejudice had been caused to the opposite parties as a result of the omission. The learned Sessions Judge found, from a perusal of the record, that Konl Ram had received two copies of the notice on 16-5-1969 on behalf of himself and his wife Smt. Mani and Karam Das had similarly received two copies of the notice, one for himself and another for his wife. As some of the opposite parties had failed to appear on 16-5-1969, the date fixed for hearing, the learned Magistrate had actually issued bailable warrants so that all the opposite parties had full notice of the procee-ings. It is true, as the learned Sessions Judge had remarked, that the issue of bailable warrants was not justified, yet, the parties had not been prejudiced at all by the omission to affix the notice to some conspicuous place at or near the land over which the dispute was taking place. Section 145(3), Code of Criminal Procedure, requires:

A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.

It is true that the requirement to serve a copy of the order upon such persons as the Magistrate directs and also its publication by affixation to a conspicuous place at or near the disputed property is mandatory. Nevertheless, it is not every violation of even a mandatory provision which vitiates a proceeding u/s 145, Code of Criminal Procedure. When such a matter comes up in appeal or revision before this Court, the essential condition, before the violation of a procedural law could warrant interference by this Court, is whether a failure of justice has occurred. Section 537, Code of Criminal Procedure, is also in mandatory terms. It lays down that "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, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or

(b) ....

(c)...

(d) ...unless such error, omission, irregularity, or misdirection has in fact occasioned a failure of justice.

Explanation.--In determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings.

It will be seen that, in the instant case, the opposite parties who did appear and tender their evidence did not complain that they had been misled about the actual property involved in this dispute and attached by the Court under the preliminary order.

It is true that the provisions of Section 537, Code of Criminal Procedure, quoted above, commence with the words "subject to the provisions herein before contained". This does not mean that the restrictions imposed by Section 537 of the Code on the powers of interference by Courts of criminal appeal and revision are nullified so that every or any violation of any procedural provision, whether mandatory or not, would justify interference. Such is clearly not the object of the provision. Therefore, we think that Ansari, J., rightly-hesitated in accepting the views of two other learned Judges of the Delhi High Court that a violation of the kind mentioned above would make the proceedings null and void and without jurisdiction.

We think, with due respect, that Ansari, J., rightly referred to the principles laid down by the Privy Council in AIR 1927 44 (Privy Council) where it was pointed out that a mere omission to follow a mandatory provision of law does not, in the absence of any proof of failure of justice, invalidate a proceeding so long as the mode of trial is not altered; It is only where a basic element in the mode of trial or inquiry is lacking as a result of an irregularity that one could reasonably hold that the mode of trial or inquiry itself is altered. Courts of trial and inquiry commit procedural errors which do not affect their jurisdiction to act. So long as the jurisdiction is not affected, the procedural, errors committed by them are cured, or, at least they do not justify interference by a Court of appeal or revision. This follows from the express prohibition in Section 537, Code of Criminal Procedure.

The Supreme Court has held, in Bhinka and Others Vs. Charan Singh, while dealing with a Magistrate''s jurisdiction u/s 145, Code of Criminal Procedure:

The Magistrate does not purport to decide a party''s title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is on apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties, which will have to be agitated and disposed of in the manner provided by law. The life of the said order is coterminous with the passing of a decree by a Civil Court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court.

In R.H. Bhutani v. M.J. Desai and Ors. (1968 CLJ 980) which has also been cited before us, it was held that the foundation of the jurisdiction of the Magistrate is the need to prevent a breach of the peace about the likelihood of which he must be satisfied so as to be able to hold that there is an apprehension of it between the disputants.

A Full Bench of the Allahabad High Court in Kapoor Chand and Another Vs. Suraj Prasad held "...... the jurisdiction of the Magistrate arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate docs not depend on how he proceeds. There are two things: one is the authority conferred on him to act and the other is how he is to act. If he has jurisdiction, he is not deprived of jurisdiction merely because his procedure is erroneous or defective. If this view be right, the omission on the part of the Magistrate to follow certain directions contained in the Code, although some of these directions may be more important than others, cannot be said to deprive him of jurisdiction."

We, respectfully, adopt the above statement of the law by the Full Bench of the Allahabad High Court and are of opinion that the principle enunciated there is applicable to the kind of violation of the directions contained in the Code, relating to the publication of the notice by the Magistrate acting u/s 145, Code of Criminal Procedure, which have been brought to our notice here. We may mention that serveral other cases decided on the same lines, were cited before us. Ansari, J., had referred to S.M. Yaqub and Ors. v. T.N. Basu and Anr. (A.I.R. 1949 Pan 146) (S.B.); State of Madhya Pradesh v. Premlal (A.I.R. 1957 Nag 27 ) and Sribatsa Pradhan Vs. Narasu Naika and Others, With view expressed on this question in these cases, amongst others, such as, Khudiram Mandal Vs. Jitendra Nath and Another, , we respectfully concur. We hold that the alleged irregularity in procedure does not warrant interference with the final order passed by the learned Magistrate.

Another ground on which, it was suggested, the order of the Magistrate could be set aside was the pendency of the civil suit. It is true that in some cases the pendency of civil suit may be taken into account in considering whether an order u/s 145, Code of Criminal Procedure, is called for or not. For example, in a suit where there is an interim injunction by a civil Court it may be futile to let parties waste the time of the inquiring Magistrate by proceedings u/s 145, Code of Criminal Procedure. But, in a case, such as the one before us, in which one of the parties has actually filed a suit for possession, thereby admitting that he is out of possession, it is quite conceivable that this party may try to obtain possession illegally even before the suit is decided. In such a case, if there is an apprehension of a breach of the peace, the Magistrate will be justified in discharging his duty to prevent an outbreak of violence by an appropriate order u/s 145, Code of Criminal Procedure, notwithstanding the pendency of a civil suit. As has been explained in Bhinka''s case (supra) and other cases cited above, the jurisdiction of the Magistrate depends upon the existence of an apprehension of a breach of the peace. It does not depend upon whether a civil suit has or had not been filed. It is true that, as observed in Bhinkas case (supra) the life of an order u/s 145, Code of Criminal Procedure, may come to an end with the decision of the dispute by a civil Court in a suit, but, that does not mean that the jurisdiction of the Magistrate is affected by the pendency of the suit at the time when the proceedings u/s 145, Code of Criminal Procedure, are initiated or terminated.

We, therefore, dismiss this revision application.