P (PLP)

Mr. A. K. M. Baquer, counsel, has appeared before me on behalf of the petitioners and has submitted that the order which was passed by Mr. Rahman on the 17th of January, 1950, cannot possibly be maintained. The opposite party is one Abdul Rouf. Abdul Rouf as petitioner filed a petition under section 144 of the Code of Criminal Procedure against the present petitioners in the Court of the Sub‑Divisional Magistrate of Brahamanbaria on the 1st of November, 1947. The Magistrate on that order recorded that after perusing the petition and after hearing the lawyer for the petitioners he was satisfied that there was likelihood of the breach of the peace, and, accordingly, he drew up proceedings under section 144 of the Code restraining the 2nd party from entering upon the land described in the schedule to the petition. The case was adjourned till 10th November 1947, but in the mean‑time the first petitioner, Serajul Islam, having obtained scent of the case, appeared on 3rd November 1947, and filed a petition. Notices of the proceeding under section 144 of the Code actually were issued and were served on all the 27 members of the 2nd party. Three of them, i.e., numbers 13, 14 and 15 of the 2nd party, were served by hanging, while the remainder were served personally. None of them appeared in Court in response to the notice served upon them. Thereafter on 10th November 1947, the Magistrate on hearing the parties converted the proceedings under section 1:44 to proceedings under section 145 of the Code of Criminal Procedure, and he attached the land under dispute. Ultimately on the 17th of January 1950, he found that there was an appre hension of the breach of the peace regarding the possession of the land, and accordingly he ordered that the 1st party be declared to be entitled to possession of the disputed land until evicted' thereform in due course of law and all disturbances to be forbidden until such eviction. He further ordered that the 2nd party (D. W. 1) should pay costs of the 1 st party, which was assessed, at Rs.

40. The substantial point taken before me by Mr. Baqeer is that the proceedings were carried on and were terminated by the Magistrate's order of the 17th of January, 1950, although no notice of those proceedings was ever serve of the members of the 2nd party who, accordingly, were greatly prejudiced by the orders in the case. The Magistrate was himself sensible of the fact that proceedings were somewhat unusual ; for in the concluding portion of his judgment he makes the following: "It appears that no formal proceeding was drawn up. But this is a mere irregularity curable by section 537 Criminal Procedure Code. It has not occasioned any failure of Justice. No objection was raised by the 1st party, 2nd party raised objection only at the time of argument and not before that. The pre liminary order was made on 10th November 1947, in presence of both parties (P. W, I and D. W, 1). They filed written statements without making the least objection. "The written statements of the parties will clearly show that they fully understood the land regarding which the order: was made and every thing that was requisite. The order gives the description of the land and calls upon both parties to file written statements. Except D. W. 1 the other 2nd party men have no claim to the land and they were made parties merely because they assisted D. W. 1 in creating the disturbances. "So although there is no return of service of the order on the parties this does not affect the case in any way, D. W. 1 who was the person actually concerned in the dispute having put in appearance‑and done all things necessary in connection with the case". I am not prepared to the apologia on part of the Magistrate for his failure to comply with the provisions of law. No formal, proceeding under section 145 of the Code of Criminal Procedure; was drawn up. The learned Sessions judge was clearly making a mistake and has misread the order in the order‑sheet when he, claims that a proceeding was in fact drawn up. The record shows that here was no such proceeding. This by itself perhaps might be an error curable under section 537 of the Code .of Criminal Procedure ; but the failure of the Magistrate to require notices to be served on the members of the 2nd party in regard to proceedings under section 145 and to affix one copy to the land in dispute is a vital defect. An attempt has been made to suggest' that this itself is a defect curable by section 537 of the Code of Criminal Procedure. Section 537 of the Code states that no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under‑this Code; that is, if there had been any error in the ' notices served on the members of the 2nd party, that defect would have been cured under section 537 of the Code of Criminal Procedure provided it could be shown that the error had in fact occasioned no failure of justice. But section 537 does not cure the failure of the Court to issue any notices at all on the members of the 2nd party. ' It is no answer to this argument to suggest, as the Magistrate has done, that it was really Serajul Islam, the 1st member of the 2nd party, who was only concerned in the dispute and that he put in‑an appearance and did all things necessary in connection with the case. The law requires that notices should be served on the other members of the 2nd party, and as they were not served, they can, with justice, claim that they were prejudiced by the order ultimately passed by the Magistrate on the 17th ‑of January 1950, disposing of the proceeding by declaring the 1st party as entitled to possession of the disputed land. The rule is accordingly made absolute and the order of the Magistrate set aside. As the proceedings were started as long ago as the let of November, 1947, I do not' propose to direct that any further action shall be taken in these proceedings. K.M.A./A.H Petition accepted.