P L D 1969 Lahore 74 (PLP)

This view was adopted by the Full Bench in Kapoor Chand arid another v. Suraj Prasad. It was observed: The sole, criterion, given by section 537 is whether the accused person has been prejudiced or not. The object of procedure is to enable the Court to do justice, but if, in spite of even of a total disregard of the rules of procedure, justice has been done, there would exist no necessity for setting aside the final order which is just and correct simply because the procedure adopted was wrong. . . . . . . . . . The jurisdiction of a Magistrate to take action under section 145, Criminal P. C. 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 does not depend on how he proceeds. If he has jurisdiction he is not deprived of jurisdiction merely because his procedure 9s erroneous or defective," and any defect in procedure whether of illegality or irregularity was curable by section 537, Cr. P. Code, if the accused was not prejudiced. In P. Swaminatha Pillar v. S. Raghyachariar and others (A I R 1934 Mad. 161) and Municipal Committee, Kohat v. Mst. Piari (A I R 1947 Pesh. 8) the view taken was that the absence of a preliminary order under section 145 (1) did not take away the jurisdiction of the Magistrate and was not vitiative of the proceedings, the irregularity being curable under section 537 of the Code. To the same effect were The State v. Muhammad Azam (P L D 1960 Pesh. 47) and Nur Muhammad Sk v. Rajab Ali Sk. (P L D 1965 Dacca 410). In the latter authority reliance was placed on Muhammad Ishaq v. Nur Mahal Begum, In this Supreme Court authority, their Lordships while examining the question of assumption of jurisdiction under section 145 (1) and the exercise of this jurisdiction observed as follows: "It is necessary, according to the tenor of the section, that before an order thereunder 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 jurisdiction conferred by it and there can be no doubt that Magistrate exercising the said jurisdiction are expected to comply strictly with the said provision 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 re 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 contravend. In a case falling under this section it 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 nave 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 vagueness 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 toe order amounts to an illegality vitiating the entire proceedings." Thus the crux of the matter is that a mere non‑compliance wit the mandatory provision contained in section 145 (1) would not per se be vitiative of the proceedings and would be curable under section 537 of the Code, unless it is established that it has occasioned miscarriage of justice. Applying the tests Lald down by their Lordships of the Supreme Court, I am clearly of the view that although the learned Magistrate did not comply with the mandatory requirement of law in making a preliminary order, yet from a perusal of the police report supported by the first information reports of pending criminal proceedings between the parties in respect of the properties in question, he was satisfied as to the existence of a dispute likely to cause breach of the peace between the parties and had rightly assumed jurisdiction in the matter. I am further convinced that this assumption and exercise of jurisdiction which instead of being challenged was passively submitted to by the petitioners did not occasion any prejudice to them resulting in the miscarriage of justice. It is in evidence that the petitioners themselves had moved the A. D. C. for the partition of the land in question which case is still pending decision. It was urged on behalf of the respondents that in fact the likelihood of the breach of the peace stood further established by subsequent course of events, when a case under section 364/ 307/149, P. P. C. relating to the forcible abduction of Masud Khan respondent was registered against the petitioners and others at Railway Police Station, Sarshamir Road, on the 19th of May 1968 as indicated by a copy of the first information report placed on the record in the course of arguments, though objected to by the learned counsel for the petitioners as irrelevant. But even if this is ignored, in view of the earlier discussion I rule out the first contention of the learned counsel for the petitioners.

9. This brings us to the second contention that the property being jointly owned and possessed by the parties, proceedings under section 145 of the Code were not competent. The learned counsel placed reliance on Arjun Chandra Kapali v. Jogendra Chandra Kapali Chowdhury (P L D 1962 Dacca 683) and Abdus Salam Meaji v. Abdul Kadir Bepari (P L D 1967 Dacca 715). In the former authority, the view taken was that a possession by a co‑owner of the entire joint property was perfectly lawful as he had a title not only to his undivided share but to the whole of the property, and as such, there was no bar to an owner of an undivided share of a property to be in possession of the whole of that property, except that his possession on the basis of legal title could not be adverse to the other co‑sharers. In the latter authority proceedings under section 145 of the Code were challenged in revision before [my learned brother A. S. Chowdhury, J. on the ground that none of the parties in the proceedings claimed exclusive possession of the property which was the subject‑matter of a partnership business. It was held that the proceedings under section 145, Cr. P. C. in a case like this were misconceived. Reliance was placed Inter alia on Sham Lal Mahtan and others v. Rajendra Lal and others (21 Cr. L J 790) in which Admi, J. of the Patna High Court took the view that:‑‑ "In a proceeding under section 145 of the Criminal Procedure Code, the dispute must be between parties, each of whom` would claim exclusive possession of the property in dispute, and where the dispute was between parties one of whom claimed joint possession of the property in dispute, proceedings could not be drawn under section 145." These authorities do not seem to be applicable to the facts of the case before me, According to the position taken up by the petitioners in their written statement, the parties are in separate possession of their shares in the joint Khata. It was held in Basudeo Singh v. Mahadao Lal (A I R 1925 Pat. 618) that where co‑sharers were in separate possession of their shares in a joint property but there was a dispute as 6 the possession of certain other shares of which each party claimed exclusive possession, section 145 was applicable. In Malik Fateh Muhammad Tiwana v. The Crown and another (P L D 1949 Lah. 397) a Division Bench authority, in which the judgment was delivered by the former Chief Justice of Pakistan, Muhammad Munir, J. (as he then was), it was held by their Lordships that "the object of the section is the prevention of dispute as to the immovable property likely to causes breach of the peace and the words used `a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, are wide enough to cover all kinds of disputes, not only disputes as to the fact of possession but also disputes as to the right to possess or the right to own or use immovable property if they are likely to cause a breach of the peace . . . . Even if neither party is found in possession and apprehension of a breach of the peace still exists, the Magistrate cannot discharge the proceedings on the finding that neither party's possession is proved, and he can still proceed to make an order under section 146 attaching the property until a Civil Court has determined the rights of the parties or of the persons entitled to possession thereof." It was further held that "it would be not only unduly straining the language of the section but also inserting in it words that do not exist, if the section were construed to mean that only such disputes as arise out of the fact of possession are within its purview " . . . . . "all disputes whether they arise out of actual possession or attempted possession or out of use of immovable property are covered by the section if they are likely to cause a breach of the peace". In view of the above discussion the second contention also stands repelled.

10. This brings us to the last contention whereby the attachment of property and the appointment of the receivers have been challenged. From a perusal of the record it appears that on the first date of hearing, i.e. 6th of March 1968, Masud Khan respondent had presented an application for the attachment of the property. It was not till the 18th of April 1968 after about half a dozen adjournments that Mr. S. A. Hakim who had initiated proceedings was transferred and the final order of attachment was made by Pir Amir Ahmad Shah to whose file the case had been transferred. In this order (Annexure 'J') after tracing the entire background of the dispute, the learned Magistrate came to the conclusion that there was an apprehension of the breach of the peace between the parties till such time as the land was not partitioned. Having said so, he proceeded to appoint Asmatullah and Khair Din Lambardars of the village as receivers of the property. As stated earlier, their appointment as receivers was not acceptable to the two Lambardars which was also objected to by Arshad Mahmud petitioner who sub mitted an application to the learned Magistrate (page 61 of the lower Court's record) that the two Lambardars should be substituted by the Girdawar or the Tahsildar. It was on the 27th of April 1968 that the Girdawar and the Patwari were substituted in place of the two Lambardars to which none of the parties had any objection. The validity of the order of attachment and appointment of receivers has been assailed on the ground that it could only be done under section 146 of the Code after the Magistrate had come to the conclusion that at the relevant time either none of the parties was in possession or it could not be determined as to which of the parties was in possession. In the first instance it may be observed that the order of attachment could also be made under the second proviso to subsection (4) of section 145 of the Code which reads as follows: "Provided also, that if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section." From a perusal of the order dated 18th of April 1968, it becomes abundantly clear that the learned Magistrate was satisfied that it was a case of emergency although the word "emergency" was not specifically used in the order. This would be clear from the following observations made therein: "From the facts on the file and the statement of the parries it becomes clear that there is immediate apprehension of breach of peace between the parties so long as the case of the division of the land has not been decided by the concerned Court. I, therefore, have no way to hush up tension between the parties

: There is no way out but to appoint receiver of the joint property

." Thus, it is evident that there could be no valid objection to the attachment of the property. It was held by this Court in A. Q. Shaukat v. S. M. Jafar (P L D 1966 Lah. 809) that an omission on the part of the Magistrate to make a preliminary order in conformity with the mandatory provision contained in section 145 (1) did not vitiate the attachment order. Thus the only part of the impugned order open to question is that of the appointment of receiver. It cannot be gainsaid that the appointment of receivers is envisaged only under section 146, Cr. P. C. after the Magistrate is unable to determine as to which of the parties was in possession or finds that none of them was in possession. Admittedly this stage had not yet been reached in the proceedings and as such prima facie it would appear that the appointment of receivers was not in accordance with law. It was contended on behalf of the respondents that Arshad Mahmud petitioner though earlier having objected to the appointment of receivers had himself made a statement before the Magistrate that he had no objection to the appointment of the Girdawar and the Patwari as receivers and it was then that the two Lambardars who were appointed as receivers earlier was substituted by the Girdawar and the Patwari. The learned counsel for the petitioners referred me to Diwan Chand and others v. Emperor (A I R 1929 Lah. 223) wherein it was held that an appointment of a receiver under section 145(4) was illegal and the provision contained in section 146 (2) could not be so read as to make its provision applicable to attachment under section 145 (4):

11. The question, however, arises that once a Magistrate considers the case to be one of emergency and invoking the powers vesting in him under the second proviso to sub section (4) of section 145, attaches the property, what are going to be his powers to deal with the property so attached? One way of doing so is to invoke the powers vesting in him in subsection (5) of section 145 and make an order for the proper custody and sale of the property if in his opinion any crop or other produce of the disputed land is subject to speedy and natural decay. If, however, there is no such occasion to invoke these powers it cannot be said that having attached the property the Magistrate is absolutely helpless to deal with it in a proper manner in the absence of any specific provision empowering him to appoint a receiver. Nankishore Prasad Singh v. Radhakishun (A I R 1943 Pat. 124) a Division Bench authority would be helpful in determining the issue. In the case before their Lordships, a Magistrate attached all the crops in about seven hundred Bighas of land under section 145 (4) of the Code and directed the Sub‑Inspector to sell the crops to the highest bidder and deposit the sale proceeds into the treasury. It was further directed that the land would be settled to the highest bidder for a period of one year. The legality of the order of settlement was challenged before their Lordships. It was contended that although the Magistrate had in a case of Emergency the power to attach the property, he had no power under that section to appoint a receiver which could only be exercised under the provision of section 146 (2) of the Code. On this analogy, it was argued that the Magistrate had no power to settle the land. While repelling the argument their Lordships referred to several authorities with approbation. In Mowa Lal v. Emperor (A I R 1918 Pat. 197) Jawala Prasad, J. observed as follows:‑ "As said by my learned brother, an attachment under section 145 may have the same effect as an attachment under the Civil Procedure Code. It may possibly amount to something more than that, that is to say, after attachment the Magistrate may take steps for the proper care and custody of the property and prevent the removal of the property by any of the rival claimants or stranvers." In Gopala Alyar v. Krishan Swamy Iyer (A I R 1920 Mad. 209) again a Division Bench authority, the following observation by Burn, J. was relied upon:‑ "When an attachment is made under section 146, the taking and keeping of possession is contemplated. I see no reason to suppose that attachment under section 145 has any other meaning. One object of the provision appears to be to keep effective control of the subject in dispute so as to prevent the contesting parties from creating a breach of the peace in their attempts to obtain physical possession . . . . A mere restraint on alienation would generally be of no use in preventing a breach of the peace, and this is the object with which section 145 is enacted. In order to keep possession a Magistrate must ordinarily act through some agent appointed by him in this behalf." The following is the most relevant observation by Mackney, J. in Maung Saa U v. Maung Lu Gale (A I R 1538 Rang. 88):‑ "The word "attached" merely means to bring under the control of the Court, and the Magistrate is entitled to effect that object in any way which is within his power. Certainly, the appointment of a receiver with the powers of a receiver under the Code of Civil Procedure is not one of those ways, because unless that power is expressly given, a Magistrate cannot exercise it . . . . Whilst I thing it advisable not to employ the term 'receiver' owning to the possibilities of misunderstanding that may arise, yet I think that it is clear that if the Magistrate's attachment is to be effected he must put some person into possession of the property who will have authority to maintain his possession." The next observation relied upon was by Sankaran Nair, J. in Srinivasa Pillay v. Sathayappa Pillay (14 1 C 759=13 Cr. L J 295) which is as follows:‑ "The receiver appointed under that section 146 has got the power of a receiver appointed under the Code of Civil Procedure. He is invested by law with powers which he can exercise himself. But the receiver appointed under this section 145 may not have such powers. He will only be an agent or servant of the Magistrate acting under his order. It is an administrative order passed for the Management of property which he has attached. The right to attach carries with it the right to take the necessary steps for its custody and Manage ment." The last observation of the series relied upon in that case was by Mukherjea and Biswas, JJ. in Faizur Rahman v. Sheikh Ladley (42 C W N 351). It reads thus: "Strictly speaking, it is a matter which is arguable whether or not a `receiver' can be appointed in any proceeding under Chapter 12 except under section

146. It seems to me, however, that even though a receiver may not be appointed consequent on an attachment made under the last proviso to sub section (4) of section 145, a Magistrate is competent to make suitable arrangements for the custody of the property attached." On the basis of all the foregoing authorities, the learned Judges with whom I am in respectful agreement, reached two conclusions firstly that the provision contained in subsection (8) of section 145 was quite independent of the second proviso to subsection (4) and, secondly, that having attached a property under section 145 (4) a Magistrate was competent to pass an order for its custody or Management. It was observed:‑ "Subsection (8) is a special provision for cases where there is crop or other produce which is subject to speedy and natural decay. There may be cases in which there is no attachment under the proviso to subsection (4) and yet some order of the Magistrate is necessary if there is any crop or other produce of the land which is subject to speedy and natural decay. Subsection (8) is primarily intended to provide for such cases. If the land with the crop is attached, the Magistrate has full powers to deal with the crop apart from the provisions of subsection (8)." It was concluded:‑ "These decisions clearly establish that a Magistrate attaching the subject of dispute under section 145(4), Criminal Procedure Code is competent to make suitable arrangements for the custody of the attached property. In the present case the Magistrate in the presence of both parties settled the attached land with the highest bidder for Rs. 5,000 for one year. It cannot be doubted that this is a suitable arrangement." The application was dismissed on the above view of the matter.

12. Having regard to the above authorities, I am satisfied that the use of the word "receiver" by the learned Magistrate in respect of the Girdawar and the Patwari may be condoned as not being vitiative of the proceedings. It is abundantly clear to me that although the word "receiver" was actually used by the learned Magistrate the appointment of the two Lambardars in the first instance later substituted by the Girdawar and the Patwari was made only with the object of handing over to them the custody, Management and control of the attached property and as such the appointment may be deemed to have been made as an inevitable measure, consequential to the attachment of the property under the second proviso to section 145 of the Code. The use of the word "receiver" may only be regarded as a misnomer for manager or a supardar, which in the light of the authorities discussed above would not per se be good enough to invalidate the impugned order.

13. Another argument addressed by the learned counsel in support of his contention that a receiver could only be appointed under subsection (2) of section 146 of the Code was that the only form prescribed in regard to a warrant of attachment is one under section 146 of the Code, there being no separate form prescribed for the purpose of attachment under section 145 (4). The factual correctness of this position cannot be disputed. There is only one warrant of attachment existing in Schedule V of the Cr. P. Code prescribed under section 146 ibid. Although the earlier section 145 also refers to attachment in a case of emergency, the fact that two distinctly separate forms of warrants of attachment have not been prescribed in the aforesaid Schedule, one under section 145 and the other under, section 146 would rather tend to suggest that in fact there is no differences in the two forms of attachment. Of course, it would have been more appropriate if section 145, Cr. P. C. were also mentioned along with section 146 in Form XXIII prescribed for a warrant of attachment existing in Schedule V of the Code. Since an attachment in the event of an emergency has been specifically provided for in the second proviso to section 145, Cr. P. C., the mere non‑existence of a relevant form with specific reference to section 145, Cr. P. C. prescribed for a warrant of attachment under this section cannot by any stretch of imagination, be so construed as to render this provision nugatory and the only reasonable inference that can be drawn from this is that in point of fact Form XXIII of a warrant of attachment has been prescribed under both the sections, namely, 145 and 146 of the Code. Be that as it may, this does not improve the case of the petitioners.

14. The upshot of the discussion, therefore, is that there is nothing wrong with the appointment of the Girdawar and the Patwari for the custody, Management and control of the attached property. The mere fact, therefore, that the word "receivers" has been used in this regard would not invalidate the impugned order.

15. In consequence the petition fails and is hereby dismissed. The record of the case may be immediately sent back to the learned Magistrate.

16. Before parting with this case, however, I would like to observe that if the learned Magistrate had been slightly more vigilant and cautious in making his orders, all these avoidable complications could have been easily obviated. Petition dismissed.