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Criminal Reference No. 217 of 1968, decided on 24th January 1969.
, Ss. 145(1) & 537‑Non‑compliance with provision regarding making of preliminary order under S. 145(1) ‑ Vitiates proceedings ‑‑ Omission, an illegality, not curable under S. 537‑[Mg. Po Lon v. Mg. Ba On and another (1925) Rang. 111 ; Kapoor Chand and another v. Suraj Prasad A I R 1933 All. 264 ; Municipal Committee, Kohat v. Mst. Piari A I R 1947 Pesh. 8 ; The State v. Muhammad Azam P L D 1960 Pesh. 47 ; Noor Nuhammad v. Rajah Ali P L D 1965 Dacca 410 and Arshad Mahmood v. Masood Khan P L D 1969 Lah. 74 ref.].
There is preponderance of authorities in favour of the view that non‑compliance of section 145,1), Cr. P. C. vitiates all the proceedings. Even from the reading of the provisions of section 145, Cr. P. C. it is clear that Magistrate has to give a finding as to which of the parties in dispute was in possession of the property in dispute at the date of the order passed under section 145(I), Cr. P. C. and if no such order is passed, then how can he give such a finding. Where, therefore, the Magistrate neither complied with the provisions of subsection ( ) of section 145, Cr. P. C. nor with the provisions of subsection (3) of section 145 it was held that such an omission is an illegality not curable under section 537, Cr. P. C.
Mg. Po Lon v. Mg. Ba On and another 1925 Rang. 111 ; Kapoor C hand and another v. Suraj Prasad A I R 1933 All. 264 ; Municipal Committee Kohat v. M.st. Piari A I R 1947 Pesh. 8 ; The State v. Muhammad Azam P L D 1960 Pesh. 47 and Arshaa Mahmood v. Masood Khan P L D 1969 Lah. 74 ref.
Noor Muhammad v. Rajab All P L D 1965 Dacca :110 and Muhammad Ishaque v. N ur Mahal Begum P L D 1961 S C 426 distinguished.
Emperor v. Sis Ram A I R 1930 Lalt. 895; Chanan Singh v. Emperor A I R 1938 Lah. 345 ; Gadagamma Venkatapathi v. Baliarsimhuni Sanyasiaju A I R 1932 Mad. 368 ; Ch. Mzthammad Siddiq v. Sahibyar Khan P L D 1953 B J 26 ; The State v. Abdul Sattar P L D 1965 Kar. 305 ; Mohibullah v. Usman Khan P L D 1967 Pesh. 311 ; Gul Muhammad v. Mst. Kubra Begum P L D 1961 Pesh. 76 and Muhammad Bakhsh v. Haji Muhammad P L D 1969 Kar. 22 rel.
Mian Yunis Shah for Petitioner.
Mian Shaukat Hussain for Respondent.
Kh. Nazir Ahmad for the State.
Date of hearing : 24th January 1969.
Some days prior to 25th August 1964, there was a dis pute regardi ig the vacant site situated in the abadi of village Amankot, Tehsil Nowshera, District Peshawar, between Khitab Gul and his, party on one side and Niaz Muhammad and his party on the other. Both the parties claimed to be it: possession. Khitab Gul had made an effort to take the site into his possession by constructing a wall around it during the night. As a result of this dispute some firing took place between the parties. Cross‑cases under section 307/34, P. P. C. were registered against them and on 24th August 1964 proceedings under section 107/151, Cr. P. C. were also taken against them. On 25th August 1964, A. S. I. Zalo Khan attached to Police Station Pabbi, lodged complaint Exh. P. A. for proceedings being taken under section 145, Cr. P. C. The Magistrate without making an order under section 145 (1), Cr. P. C. that he was satisfied that a dispute was likely to cause a breach of the peace, summoned the parties and directed them to submit their statements of claim. Thereafter, he recorded the statements of the parties and their witnesses and held that the disputed site was in the possession of Niaz Muhammad of the second party and ordered that its possession be handed over to Niaz Muhammad, with a direction that Khitab Gul and his party should not disturb the possession of Niaz Muhammad over it. Against that order Khitab Gul went up in revision before the learned Additional Sessions Judge, Peshawar, who acting under section 438, Cr. P. C. has made a reference to this Court, recommending that the order of the Magistrate be set aside as the provisions of section 145 (1), Cr. P. C. had not been complied with.
2. At this stage it will be desirable to reproduce section 145 Cr. P. C., which reads as follows :‑‑
"(1) Whenever a District Magistrate, Sub‑divisional Magis trate 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 pace 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 res pective claims as respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section the expression land or water' includes buildings, markets, fisheries, crops or other produce of land, and the rents or profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute.
(4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, (receive all such evidence as may be) produced by them respectively, consider the effect of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in pos session at such date 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.
(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that as such dispute as aforesaid exists or has existed and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magis trate under subsection (1) shall be final.
(6) If the Magistrate decides that one of the parties was (or should under the first proviso to subsection (4) be treated as being) in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law, and forbidding all disturbance of such possession until such eviction (and when he proceeds under the first proviso to subsection (4), may restore to possession the party forcibly and wrongfully dispossessed).
(7) When any party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry, and if any question arises as to who the legal representative of a deceased party for the purpose of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is sub ject to speedy and natural decay, he may, make an order for the proper custody or sale of such property, and, upon the completion of the inquiry, shall make such order for the disposal of such property, or the sale‑proceeds thereof, as he thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under this section, on the application of either party, issue a summons to any witness directing him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under section 107."
From the facts narrated above, it appears that the Magistrate neither passed an initial order that he was satisfied that the dispute was likely to cause a breach of the peace concerning this property nor directed that a copy of the summons be published by being axed to some conspicuous place at or near the subject of dispute. In other words he did not comply with the mandatory provisions of subsections (1) and (3) of section 145, Cr. P. C.
3. The learned counsel for Niaz Ahmad, respondent, contended that non‑compliance of the provisions of section 145 (1925 Rang. 111), Cr. P. C. regarding the making of the preliminary order per se did not vitiate the proceedings, and that the said irregularity was curable under section 537, Cr. P. C., unless it has occasioned miscarriage of justice. In support of his contention he relied on cases Mg. Po Lon v. Mg. Ba On and another (1), Kapoor Chand and another v. Suraj Prasad (A I R 1933 All. 264), Municipal Committee Kohat v. Mt. Piarl (A I R 1947 Pesh. 8), The State v. Muhammad Azam (P L D 1960 Pesh. 47), Muhammad Ishaque v. Nur Mahal Begum (P L D 1961 S C 426) Noor Muhammad v. Rajab Ali (P L D 1965 Dacca 410) and Arshad Mahmood v. Masood Khan (P L D .1969 Lah. 74). In case Mg. Po Lon v. Mg. Ba On and another it was held
"Defect due to not making an order in writing as required by section 145 (l) is curable under section 537, Cr. P. C."
In case Kapoor Chand and another v. Suraj Prasad it was held :‑
"The jurisdiction of a Magistrate to take action under section 145, Criminal Procedure Code arises from the fact that he has received certain information and that he is satisfied as to the truth of that information. The jurisdic tion of the Magistrate does not depend on how he proceeds. If he has jurisdiction he is not deprived of jurisdiction merely because the procedure is erroneous or defective.
Hence 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 case Municipal Committee, Kohat v. Mt. Piari it was held :‑
"mere omission to record preliminary order as required by section 145 (1), however, objectionable, is not sufficient to discharge the final order. The irregularity is cured by the provisions of section 537, if it does not in fact occasion a failure of justice. Hence it cannot be said that the trial Magistrate has no jurisdiction to proceed with .the matter in the absence of a preliminary order."
In case The State v. Muhammad Azam it was held by Habib Ullah, J.:
"An omission to record the preliminary order under section 145, Criminal Procedure Code, 1898, however objectionable is not sufficient to vitiate proceedings under the section and the defect is curable under section 537 oaf the Criminal Procedure Code, 1898."
In case Muhammad Ishaque v. Nur Mahal Begum where the Magistrate without stating the grounds of his being so satisfied, passed the initial order under section 143 (1), Cr. P. C. the Supreme Court held :‑‑
That the order was not necessarily illegal or without jurisdiction."
This authority does not apply, because in the present case no initial order under section 145 (1), Cr. P C. was passed In case Noor Muhammad v. Rajab Ali the order complained of did not disclose that there was any such likelihood of breach of the peace and the Magistrate while passing the order did not set out the grounds on which he was satisfied that the dispute was likely to cruse a branch of the peace existed. Relying on the aforementioned authority of the Supreme Court it was held :‑‑
"That this was a mere irregularity which was curable under section 537, Cr. P. C."
In case Arshad Mahmood v. Masud Khan the learned Judge relying on the aforementioned authorities held
"That non‑compliance of the provisions of section 145 (1). Cr. P. C. regarding the making of preliminary order per se did not vitiate proceedings and that such non‑compliance was an irregularity curable under section 537, Cr. P. C., unless it has occasioned miscarriage of justice."
4. In rebuttal the learned counsel for Khitab Gul relied on the cases : Emperor v. Sis Ram (A I R 1930 Lah. 895) Chanan Singh v. Emperor (A I R 1938 Lah. 345), Gadagamma Venkatapathi v. Baliarsimhuni Sanvasiraju (A I R 1932 Mad. 368), Ch. Muhammad Saddiq v. Sahibyar Khan (P L D 1963 B J 26), The State v. Abdul Sattar (P L D 1:965 Kar. 305), Mohibullah v. Usnzan Khan (P L D 1967 Pesh. 311), Gul Muhammad v. Mst. Kubra Begum (P L D 11961 Pesh. 76) and Muhammad Bakhsh v. Haji Muhammad (P L D 1969 Kar. 22). In case Emperor v. Sis Ram it was held
"The provisions of section 145 (1) are mandatory and consequently if no notice is issued as required and there is no finding that there was a danger of breach of the peace, the order under section 145 becomes ultra vires."
In case Chanan Singh v. Emperor it was held
"Omission by a Magistrate in a complaint under section 107/145, to draw up the necessary original order under section 145 (1) and to affix its copy at the spot under section 145 (3) vitiates all the proceedings and the final order passed therein is liable to be set aside."
In case Gadagamma Venkatapathi v. Baliarsimhuni Sanvasirju it was held :‑
It is obligatory on the Magistrate under section 145 (1) to state in writing the grounas for his being satisfied that on account of the dispute in respect of lands there is a likelihood of a breach of peace. On passing such order in writing he should require the parties concerned in such a dispute to attend his Court and put in written statements as regards their respective claims as regards the actual possession of the subject of dispute.
In case Ch. Muhammad Siddiq v. Sahibyar Khan it was held :‑
"That a Magistrate before issuing process should record preliminary order stating grounds of his being satisfied that the dispute likely to cause the breach of the peace exists between the parties."
It was further held :‑
That the preliminary order reading merely, issue notice to the other party , did not conform to the requirement of law " In case The State v. Abdul Sattar it was held :‑
"Section 145 (1), Criminal Procedure Code, 1898 makes imperative provision requiring the Magistrate to state the grounds of his being satisfied that a dispute likely to cause breach of ileac; exists. The reason for this is obvious. The Criminal Courts are not expected to decide disputes of civil nature relating to possession of immovable property. That is the function of the civil Court. They acquire jurisdiction only when there is apprehension of breach of peace. That being so, it must appear from the order of the Magistrate that he had applied his mind to the ques tion as regards the breach of peace because it is the existence of such a dispute which gives him jurisdiction to entertain the matter."
In case Mohibullah v. Usman Khan it was observed :‑
"Subsection (4) of section 145, Cr. P. C., makes it incumbent on the Magistrate to conduct an enquiry and give a clear cut finding as to whether any and which of the parties was in such possession at the date of the preliminary order. Proviso (1) furnishes the solitary excep tion to this rule where it appears to the Magistrate that one of the parties has been forcibly and wrongfully dis possessed within two months of the date of the order, as the Magistrate may treat the party so dispossessed as if he had been in possession at such date. Where, there fore, the Magistrate conspicuously omitted to determine the specific question as to which of the party at the time of initiating the proceedings under section 145 (as no initial order was passed in the case) was in possession but decided the question of possession on the basis of title it was held "That since one of the most essential elements which is the foundation of conferring jurisdiction on the Magistrate to pass orders under section 145, Cr. P. C., namely, the possession of the party at the time of the order, had not at all been determined, the order was vitiated."
In case Gul Muhammad v. Mst. Kubra Begum Ortcheson and Habibullah, JJ. observed :‑
"It is not sufficient that a Magistrate should have received information that a breach of the peace is apprehended, it being further imperative that he should be satisfied that the information is true. If it can be ascertained from the material on the record that the Magistrate was so satisfied the mere absence of a preliminary order would, no doubt, not render his subsequent proceedings illegal, but the diffi culty is that unless a preliminary order is recorded stating that the Magistrate is satisfied of the existence of an apprehension of a breach of the peace and giving his reasons for being so satisfied, it is not easy for a superior Court to discover whether this essential condition for the assump tion of jurisdiction has been fulfilled. The mere fact that a Magistrate issues notice to the parties to attend his Court and put in written statements by no means necessarily implies recognition on his part that his jurisdiction depends on the existence of a danger of a breach of the peace."
From the above it is clear that Habibullah, J. while sitting with Ortcheson, J., reversed his view expressed by hire in case The State v. Muhammad Azam.
In case Muhammad Bakhsh v. Haji Muhammad it was held
"That an omission to comply with the provisions of section 145 (1), Cr. P. C. was not merely an irregularity, but an illegality which renders subsequent order illegal."
From the above it is evident that there are preponderance of authorities in favour of the view that non‑compliance of section 145 (l), Cr. P. C. vitiates all the proceedings. Even from the reading of the provisions of section 145, Cr. P. C. it is clear that Magistrate has to give a finding as to which of the parties in dispute was in possession of the property in dispute at the date of the order passed under section 145 (1), A Cr. P. C. and if no such order is passed, then how can he give such a finding. In the present case the Magistrate neither complied with the provisions of subsection (1) of section 145, Cr. P. C. nor with the provisions of subsection (3) of section 145. I, accordingly, with due respect to the learned Judges, who have held that such an omission is an irregularity curable under section 537, Cr. P. C., disagree with them.
5. In the result I accept the reference of the learned Additional Sessions Judge and set aside the order of the learned trial Magistrate directing that the disputed site be handed over to Niaz Muhammad respondent.
A. E. Reference accepted.
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