1972 PLP 562 (SCMR)

SALAHUDDIN AHMED, J.‑This leave petition arises out of a proceeding under section 145 of the Code of Criminal Procedure which culminated in the passing of the order dated the 31st October 1968, whereby the disputed hillock was held to be in possession of the villagers of Mughalki represented by the respondents herein, and consequently the villagers of Nandrak represented by the petitioners herein were directed not to interfere with the possession of the respondents. It has been contended before us that inasmuch as the preliminary order dated the 29th April 1968, was illegal, all the proceedings that followed the order were illegal and should be quashed. It has been argued that the preliminary order was illegal because the Magistrate failed to state therein the grounds on which he was satisfied. It appears that the aforesaid proceeding was proceeded by an inquiry by a Sub‑Inspector of Police who obtained writing from the representatives of the two villages to the effect that there existed the likelihood of a breach of pace between the parties. The Sub‑Inspector thereafter sent an application under section 145 of the Code of Criminal Procedure to the Magistrate concerned through the proper channel. The Sub Inspector was summoned and he was examined in writing by the Magistrate on the 17th April 1968, and the parties were summoned for the 29th April 1968, when the impugned preliminary order was passed. The Magistrate stated in the preliminary order that it had come to his notice that there was a dispute between the parties over the disputed land, and that consequently there was an apprehension of breach of peace between them. The Magistrate, accordingly, directed that the parties should not in any way interfere with the disputed land until the decision of the case. Both the parties put their thumb‑impressions at the back of this order. The order showed that the parties were given time to submit the written statements. The contention of the petitioner is concluded by the decision of this Court in the case of Muhammad Ishaque Chowdhury and another v. Nur Mahal Begum and others (PLD1961SC426). In the case under report in a similar case where although the words `I am satisfied' were there, no grounds were mentioned upon which the Magistrate was satisfied, this Court 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 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 mast 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 noncompliance with a rule of procedure and mere noncompliance with a rule of procedure generally is not an illegality vitiating the entire proceedings." All the three essentials mentioned in the case under report having been fulfilled in the present case, the impugned preliminary order is not without jurisdiction. The materials on record fully justified the passing of the order. There is no substance in these petition and it is accordingly dismissed. Leave refused.