P L D 1961 Supreme Court 426 (PLP)

HAMOODUR RAHMAN, J.‑This appeal by special leave is directed against an order of the High Court of East Pakistan summarily, dismissing an application for the revision of a preliminary order passed under section 145 (1) of the Criminal Procedure Code, by the Sub‑Divisional Officer, Sadar (North), Chittagong, on the 6th of 'November, 1959. The impugned order is in these terms :‑ "Seen petitions and reports. I am satisfied that there is serious apprehension of breach of peace and immediate measures are necessary. Start proceedings under section 145, Cr. P. C. The property is attached and o/c Kotwali appointed receiver. Let party file written statements by 24‑11‑59." The grounds upon which the said order was challenged in the Courts below, was that in so far as the order did not state the grounds upon which the Magistrate claimed to have been satisfied, it was vitiated and should, therefore, have been set aside on the ground that it was made without jurisdiction. Merely stating the fact of satisfaction, it is contended, is not sufficient, for, the foundation of the jurisdiction of the Magistrate under the said section is conditioned by the mode prescribed therein for the exercise of the said jurisdiction. Leave was granted to the appellants for the consideration of the above question in view of conflicting decisions of the High Courts in India on this point. Some of the High Courts have held that the omission to set out in the preliminary order under section 145 of the Criminal Procedure Code the grounds of being satisfied as to the likelihood of a breach of peace renders the order without jurisdiction and, vitiates all proceedings taken thereafter. It is, no doubt, true that subsection (1) of section 145 of the Criminal Procedure Code requires this to be done. Section 145 (1) is in these terms :‑ "Whenever a District Magistrate, Sub‑divisional Magistrate or Magistrate of the first class is satisfied from a police‑report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." It is necessary, according to the tenor of the section, that before an order there under can be issued the Magistrate must first be satisfied with regard to the matters therein specified and then after being so satisfied he shall make an order in writing "stating the grounds of his being so satisfied." This statutory provision, therefore, does prescribe the mode for the exercise of the jurisdic tion conferred by it and there can be no doubt that Magistrates exercising the said jurisdiction are expected to comply strictly with the said provisions of law. But to 'say that a failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is, in our opinion, too wide a proposition. In our view, there is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied : ‑ (a) that a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of his territorial jurisdiction. If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. We are unable, therefore, to hold that the mere omission to state the grounds, upon which the Court is so satisfied, in the initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdiction. The most that can be said is that the failure to do so is a non‑compliance with a rule of procedure and mere non‑compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings. In our opinion, when a Court exercises a jurisdiction not strictly in accordance with the mode prescribed by the statute, the question must necessarily arise as to whether the defect amounts merely, to an irregularity or an illegality and the answer to this question must necessarily depend upon the character and the object of the rule which has been contravened. In a case falling under this section it is patent that the object of the rule requiring the Court to state the grounds of its satisfaction in the initial order is merely to inform the parties against whom proceedings are sought to be initiated of the reasons which have induced the Court to take action and thus to enable them to put up a proper defence. If the initial order recorded does not state these reasons and the party against whom it is directed finds it difficult to prepare his defence by reason of the vaguenous of the order, he can always apply to the Court for the statement of the grounds. On the other hand, if the parties do not feel any difficulty owing to the omission of the grounds and adduce evidence in support of their respective cases, it is difficult to appreciate upon what principle it can be said that the defect in the order amounts to an illegality vitiating the entire proceedings. In our opinion, in such cases the important thing is to see whether there were materials on the record upon which the satisfaction of the Magistrate could be at all grounded. If there exist such materials, then the mere omission to state the grounds of satisfaction will not vitiate the order. In such a case it must be held that there has been substantial compliance with the requirements of the said subsection and that the defect is merely a technical defect. This view also finds support from the Full Bench decision of the Calcutta High Court in the case of Khosh Muhammad Sarkar v. Nazir Muhammad (I L R 33 Cal. 352), upon which reliance was sought to be placed by the learned counsel appearing for the appellants to show that this principle is applicable only in cases where proceed have in fact been taken and concluded by a final order. According to him when a party challenges such a defective order at the initial stage the considerations which normally deter a superior Court from setting aside the entire proceedings should not be given the same weight. We are, however, unable to see any distinction in principle. There is no valid reason as to why the legal consequence of such a defect should be different at different stages of the same proceeding. Apply this principle, therefore, to the Facts of the present case we have no hesitation in corning to the conclusion that there were abundant materials present upon which the satisfaction of the Magistrate could have been so grounded. The Police report, upon the basis of which action was taken by the Magistrate, itself discloses that the Deputy Superintendent of Police, who through out supervised the inquiry conducted by the officer in charge, considered that "there is every possibility of the breach of the peace". Apart from this, the petitions filed by the appellants as well as the respondents before the Martial Law Authorities, which were forwarded with the Police report to the Magistrate, disclosed that each side was alleging that the others were persons of desperate character who have title regard for law and order. Thus the appellants in their petition to Military Administrator, Chittagong area submitted on the 31st of October 1959 stated as follows :‑ "That Nurmahal Begum and her mother and brother being very influential men of desperate nature and they want to take the law in their own hands and have little regard for law and order and so they are harassing Muhammad Sabur and Muhammad Issak Chowdhury in taking peaceful. possession from their tenant Herbertsons Co., for no reason at all." On the other hand, the respondents in their petition to the Martial Law Authorities, Chittagong, submitted on the 15th of October 1959, alleged as follows :‑ "I have three step brothers named Muhammad Sabur Chowdhury, Muhammad Ishaque Chowdhury and Muhammad Ali Chowdhury. They are always giving us many troubles, even are trying to kill us as they are such a dangerous people." These petitions also disclosed that the feelings‑between the parties have been considerably embittered due to prolonged litigations over the properties. On these materials the Magistrate concerned was, in our opinion, fully justified in initiating proceedings under this section and his action cannot be said to be either perverse or arbitrary or based on no materials at all. Indeed, we are satisfied that there were sufficient materials upon which the Magistrate concerned could reasonably be satisfied that there was a likelihood of a breach of peace and in these circumstances it is not for us to go any further into the question of the sufficiency of the said materials, for, we cannot substitute our own satisfaction for the satisfaction of the Magistrate concerned. An attempt was also made by the learned counsel to argue that the Magistrate concerned had not exercised his independent judgment in the matter but merely acted upon the report of the Police who in their turn had been influenced by the order of the Military authorities on the petition of the respondents submitted on the 15th October, 1959. It appears that the officer‑in‑charge Martial Law Information Centre, Chittagong forwarded the said petition to the Superintendent of Police, Chittagong, with the following endorsement :‑ "To please take surety Peace Bond from these men. Also to take action for restoration of possession of building referred to in last para by 30th October, 1959." This suggestion, however, is unfounded, for in the petition for special leave filed in this Court by the appellants themselves it is stated : ‑ "That the Martial Law Authorities, after receipt of the representations of your petitioners and report from Police refrained from taking any further action in the matter and your petitioners thought that the matter had ended there‑" The present proceedings appear to have been started upon the complaint addressed to the Sub‑Divisional Officer (North), Chittagong, and the City Deputy Superintendent of Police, Chittagong, by the respondents, on the 28th of October, 1959. This proceeding therefore, was an independent proceeding with which the Martial Law Authorities had nothing whatever to do. For the reasons given above this appeal is dismissed. K. B. A. Appeal dismissed.