1905 (8) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Non-publication of notice on the land in dispute as required by Section 145(3) of the Criminal Procedure Code.
2. The sufficiency of the Police report in stating the likelihood of a breach of the peace.

Issue-wise Detailed Analysis:

1. Non-publication of Notice on the Land in Dispute:
The petitioners challenged the Magistrate's order on the ground that no notice was published on the land in dispute as required by Section 145(3) of the Criminal Procedure Code. They argued that this omission affected the jurisdiction of the Magistrate. The Court acknowledged the contention but clarified that the failure to publish the notice did not destroy the jurisdiction of the Magistrate. The Court distinguished between jurisdiction and the mode of exercising jurisdiction, emphasizing that non-compliance with procedural rules does not necessarily nullify jurisdiction. The Court held that the non-publication of the order was an irregularity, not an illegality, and did not invalidate the proceedings unless it caused prejudice to any party. The Court noted that the initial order was served upon both parties, and they participated in the proceedings without raising any objection to the regularity of the process. Therefore, the Court concluded that the non-publication of the notice did not deprive the Magistrate of jurisdiction.

2. Sufficiency of the Police Report:
The petitioners also contended that the Police report did not definitively state the likelihood of a breach of the peace. The Court examined the Police report and found that it did indicate a likelihood of a breach of the peace. Therefore, the Court dismissed this ground of challenge.

Separate Judgments Delivered:

Francis W. Maclean, C.J.:
The Chief Justice emphasized that the power of interference under Section 15 of the Charter Act should be exercised with caution. He opined that the mere omission to publish the notice did not deprive the Magistrate of jurisdiction. The provision for publication was considered directory and procedural, not jurisdictional. The Chief Justice highlighted that the parties were duly served, appeared, and contested the case. The omission did not prejudice any party, and therefore, the Court should not interfere under Section 15 of the Charter Act.

Ghose, J.:
Justice Ghose agreed that the Magistrate acquires jurisdiction upon fulfilling the conditions of Section 145(1) and that the procedures in clauses (3) and (4) are mandatory. However, he opined that non-compliance with clause (3) constituted an illegality in the exercise of jurisdiction, not a lack of jurisdiction. He emphasized that the Court should interfere only if prejudice was caused to any party. In this case, no prejudice was shown, and the parties were duly served and participated in the proceedings.

Rampini, J., Pratt, J., and Henderson, J.:
These judges concurred with the judgment delivered by the Chief Justice.

Conclusion:
The Court concluded that the non-publication of the notice under Section 145(3) was an irregularity, not an illegality, and did not deprive the Magistrate of jurisdiction. The Police report was found sufficient in indicating the likelihood of a breach of the peace. Therefore, the Rule was discharged.