P L D 1961 Dacca 499 (PLP)

Sudhangshu Kumar Basu for 1st Party. Bepin Chandra Saha for 2nd Party Nos. 4 to

6. This rule is directed against an order passed under section 146 (1) of the Code of Criminal Procedure, attaching certain lands in regard to which there was a dispute between the 1st party petitioner and the' 2nd party respondents in this Rule.

2. It appears that the petitioner on the 23rd of October 1956, first, obtained an ex parte order under section 144 of the Code of Criminal Procedure restraining the respondents herein from entering into plot No. 1633 of Mouza Subhadya, P. S. Keranganj in the District of Dacca. 'The said proceeding was, however, on the 22nd of December 1956, converted into a proceeding under section 145 of the Code of Criminal Procedure, the disputed land was attached, and the President of the Local Union Board was appointed the receiver of the land. The parties to the proceeding were also called upon to file their, written statements by the 21st of January 1957. The parties did so, and they examined witnesses in respect of their respective cases from time to time, and ultimately arguments were heard from the 23rd to the 26th of September 1958. Thereafter, on the 11th of October 1958, the Magistrate concerned delivered an elaborate judgment holding that from tire evidence adduced, he was unable to satisfy himself as to which of the parties was, in. possession of the land. But as there was apprehension of breach of peace even then, he ordered that the disputed land do remain attached under section 146 (1) of the Code of Criminal Procedure until a competent Civil Court has adjudicated upon the respective rights of the parties.

3. Against' this order, the petitioner moved the learned Sessions Judge of Dacca, but the Additional Sessions Judge, Ist Court, Dacca, to whom the case was transferred for disposal, rejected the said application. Hence, the 1st party in those proceedings has now come up in revision to this Court, and on his behalf only two points have been urged in support of this Rule.

4. The first is that since no fresh proceeding was drawn up under section 1.15 of the Code of Criminal Procedure, n:) order was drawn up specifying the grounds mentioned in subsection (1) of section 145 of the Code of Criminal Procedure, no copy Of the order wasy served on the parties to the dispute, and no copy thereof was published by being affixed in a conspicuous place at or near the subject of dispute, as provided under section 145 (3) of .the Code of Criminal Procedure, the entire proceeding was illegal and without jurisdiction. '

5. It is contended that this is a violation of a mandatory rule laying down the procedure of an enquiry of this nature, and hence it was something like a condition precedent to the exercise of the jurisdiction vested in the Magistrate under the said section. In support of this contention, , the learned Advocate sought also to rely upon two decisions of the Calcutta High Court in the case of Janu Mattjhi v. Maniruddin (8 C WN 590) and Naivab, Khajah Sole Mollah Bahadur v. Ishan Chandra Das Sarkar (9 C W N 909).

6. It appears, however, that subsequently a Full Bench of the Calcutta High Court in the case of Sukh Lal Sheikh v Tara Chand Tara (I L R 33 Cal. 68), overruled these decisions, and held that the use of the word "then" in subsection (4) of section 145 of the Code of Criminal Procedure applied only to the time or order of the Magistrate's proceedings, and was not intended to deprive him of jurisdiction if the notice had not been duly published. Thus, in the opinion of the Full Bench "the mere fact that the Court omitted to have a copy of the Magistrate's order published by affixing it to some conspicuous place at or near the subject of dispute does not deprive the Court of its jurisdiction to deal with the case."

7. In dealing with the arguments advanced before them in circumstances more or less similar to the circumstances of the present case, Chief. Justice Maclean observed as follows "In the case before us the hollowness of the petitioner's contention is sufficiently transparent. The parties concerned in the dispute were duly served, they appeared, and the case was fought out before the Magistrate. The present petitioner subsequently discovered, by searching the records, that a copy of the order had not been published by 'being affixed in some conspicuous place at or near the subject of dispute and then applied for the present Rule. There is not the slightest ground suggested that any one has been in the least prejudiced by the omission. We, therefore, think that, unless it be shown that someone interested has been materially prejudiced by the irregularity in the procedure, the Court ought not to interfere."

8. In saying this however, the learned Chief Justice also impressed upon the Magistracy of the Province the necessity of strict compliance with subsection (3) of section 145 of the Code of Criminal Procedure in order to avoid any such question being raised.

9. The same view was also taken by another Division Bench of the Calcutta High Court in the case of Ahmed Chowdhury v: Parbati Charan Roy (I L R 35 Cal. 774). In this 'case it was held that where there was no personal service of the notice on the parties nor local publication thereof, and neither party filed written statements but the Magistrate after taking ' the evidence of only one witness on behalf of the 2nd party alone declared him to be entitled to possession the proceedings were extremely irregular, and had prejudiced the Ist party. In that view of the matter, the Division Bench took the view that inference was called for by the High Court.

10. I may observe that I am in entire agreement with the observation of Maclean, C. J., which I have quoted earlier. It is now well settled after this Full Bench decision that the non compliance with the method of service provided in subsection (3) f of section 145 of the Code of Criminal Procedure is merely an irregularity, which cannot vitiate the proceedings in the absence of any prejudice being shown to any party. This view has now been consistently held by almost all the High Courts in India, and I see no reason to differ from it.

11. The next point urged by the learned Advocate is that the conversion of the proceeding under section 144 of the Criminal Procedure Code to one under section 145 of the Code of Criminal Procedure was illegal as it was done after the expiry of the period during which the original order under section 144 of the Criminal Procedure Code remained operative. In support of this contention reliance was placed on a decision of a Division Bench of this Court in the case of Rabati Mohan Dey Sarkar v. Amsar All Mondal and others ((1953) 5 D L R 162). This decision is, of course, binding upon me being a Division Bench decision, but this decision does not help the learned Advocate because the conversion in the present case took place within the period for which the order under section 144 was operative, and hence there was no question here of any attempt being made to retrieve an order which was already dead. The order under section 144 of the Code of Criminal Procedure as already indicated was made on the 23rd of October 1956, and the conversion took place on the 22nd of the December 1956 which was the 60th day "from" the 23rd October 1956, excluding the said date. In making this computation of time, I have followed the principle indicated in the General Clauses Ac‑, 1897, and have excluded the 23rd of October 1956 from such computation as the words "from the making thereof" have been, used in subsection (6) of section 144 to indicate the commencement of the period of time.

12. These are the only points which have been urged in support of this Rule, and since the petitioner has failed on both these points, this Rule is discharged. K. B. A. Rule discharged.