P L D 1965 Dacca 410 (PLP)

The learned Sessions Judge has based his recommendation on the ground that "the order complained of does not disclose that there was any such likelihood of a breach of peace", and that the Magistrate while passing the order did not set out the grounds on which he was satisfied that a dispute likely to cause a breach of the peace existed. It is true that the impugned order does not record satisfaction of the Magistrate as to the existence of the likelihood of the breach of peace. It however, appears that the Magistrate received the petition under section 145 of the Code on 11‑10‑

63. He did not pass any order on that day. He issued a notice on the second party to show cause why proceedings should not be drawn up. That was necessary for the Magistrate to do at the first instance. It seems that he was proceeding with utmost caution in the matter and that is why even before drawing up of the proceedings he gave the second party an opportunity to show cause why proceedings should not be drawn up. He thereafter heard both the parties and he drew up the proceeding. In the order noted in the order‑sheet on 8‑11‑63, he did not say that he was satisfied that there existed an apprehension of the breach of peace. He, however, recorded in the notice served on the parties under his signature, his satisfaction in the following terms: "Whereas it appears to me from the petition of the 1st party man and on hearing that a dispute is likely to induce a breach of peace between the parties (noted below) situated within the local limits of my jurisdiction (Baherhat Sub‑Division). So all the said parties are called upon to give in a written statement of their respective claims as to the fact of the actual possession of the lands said below by the 30th November 1963." In the case of Md. Ishaque Chowdhury and others v. Nur Mahal Begum and others (P L D 1961 S C 426) a final order under section 145 of the Code was challenged and our Supreme Court observed as follows:‑ "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 but it is not an illegality vitiating the entire proceedings." These observations fully apply to the case before me. The learned Magistrate ought to have recorded his satisfaction in the order‑sheet itself. But the omission to do so is merely an irregularity which is curable under section 537 of the Code of Criminal Procedure. Moreover, in view of what is stated in the notice issued on the parties as quoted above, I am of opinion that there has been no prejudice to any of the parties by this mere omission. That being so, the first ground on which the learned Judge has made the reference cannot be deemed to be sufficient to justify my interference with the impugned order. Similar question was raised in a Full Bench case of the Allahabad High Court in Kapoor Chand and another v. Suraj Prasad (A I R 1933 All. 264). In that case, it was observed as follows:‑ "Now, if we read section 145, in the light afforded by the sections quoted above, we see that if the Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he is seized of jurisdiction to take action and he is empowered by the Code to act in a particular way. If this view be correct, the jurisdiction of the Magistrate arises from the fact he has received certain informa?tion and that he is satisfied as to the truth of that information. The jurisdiction of the Magistrate does 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." In the case before me, the Magistrate had before him the petition of the first party. Thereafter he heard the 2nd party and then he drew up the proceeding. That shows that he satisfied himself from the petition of the 1st party as well as after hearing the 2nd party. Although he did not record the satisfaction in the order?-sheet, he did so in the notice itself. In the case of Ratan and others v. Tika (A I R 1939 Lah. 233) it was held that failure to record a satisfaction as to the existence of likelihood of the breach of peace would not vitiate a final order under section 145 if the parties were not prejudiced thereby and the defect was curable under section 537 of the Code. Next point for setting aside the impugned order as mentioned by the learned Judge is also of no avail. The learned Magistrate had materials before him as indicated above to justify drawing up of the proceedings. Although he did not record the grounds but it appears that he heard the parties and perused the petition. B That means that he acted on the grounds mentioned in the petition. There is, therefore, no prejudice to any of the parties for omission to set out the grounds and I am of opinion that there should be no interference with the impugned order on this) ground as well. In the case of Khosh Mohammad Sirkar v. Nazir Mohammed (I L R 33 Cal. 352) a Full Bench of the Calcutta High Court held that an order made under section 145 (1) of the Code was not defective, because it was not self‑contained and did not state in express terms the grounds upon which the Magistrate was satisfied that a dispute likely to cause a breach of the peace existed when such grounds appeared in the police report on which the order was founded and to which it made reference in express terms. In the case before me the petition of the 1st party has been mentioned and on hearing the parties as has been mentioned in the order, proceedings were drawn. On an examination of the grounds mentioned in the letter of reference I am satisfied that it cannot be accepted. In the result, the Reference is rejected and the case is to go back to the Magistrate to proceed with the same in accordance with law. Regard being had to the delay caused by this letter of Reference, the Magistrate is directed to proceed with the matter as expeditiously as possible on arrival of the records. S. Q.??? Reference rejected.