Full Judgment
Niamatullah, J.
1. This is an application for revision of an order passed by the Sub-Divisional Magistrate, Pilibiut, under Section 145, Criminal P.C. The proceeding' was started on a complaint dated 26th April 1933 presented by Abdul Waheed Khan, the 'agent of a lady framed Badri Jahan Begum. It was alleged that the lady had obtained a decree or order dated 19th April 1933 in respect of a grove and that she sold its produce to certain persons who on proceeding to take possession of the grove found that the produce had been sold on behalf of Sahu Har Prasad to certain other persons who had taken unlawful possession thereof. It was also alleged that a breach of the peace was imminent. The Magistrate recorded the statement of Abdul Wahoed Khan and called for a report from the officer in charge of the police station. That officer reported that there was an apprehension of a breach of the peace between the parties. The report also mentioned the name of one Sheo Prasad, the manager of the estate of Sahu Har Prasad, as the person who had 'laid the foundation of the breach of the peace.' On receipt of the report, the Magistrate directed the grove in dispute be attached, that notices be issued to Sheo Prasad and Pearey Lal and that the complainant be also informed. On a subsequent date the Magistrate examined a few witnesses, including the patwari whom he summoned at his own instance and passed an order declaring Mt. Badrul Jahan Begum to be entitled to the possession of the grove possession of which was accordingly given to her.
2. Pearey Lal, applied to the District Magistrate, in revision who examined tlie record and noted a number of irregularities in the proceedings of the Sub-Divisional Magistrate. He however refused to make a reference to this Court on the ground that no failure of justice : occurred and therefore the irregularities complained of were cured by Section 537, Criminal P.C., Pearey Lal then moved this Court under Section 435, Criminal P.C. The learned advocate who appeared in support of the revision referred to the non-observance by the Sub-Divisional Magistrate of the provisions of Section 145, in almost every material particular. I do not consider it necessary to deal with every one of the alleged irregularities and would deal with only one aspect of the case.
3. Abdul Waheed Khan's complaint and ihe police report clearly showed that the real contesting parties were Badrul Jahan Begum and Sahu Har Prasad. Abdul Waheed Khan who presented the application before the Sub-Divisional Magistrate, Sheo Prasad and Pearey Lal to whom notices were issued by the Magistrate acted for their respective masters. The Magistrate should have issued notices to Badrul Jahan Begam and Sahu Har Prasad to file their written statements and to substantiate their allegations. Neither of them was so called upon. The case proceeded between the agents of the two, though possession was given to Badrul Jahan Begam. It is obvious that a procedure of this kind deprives an order under Section 145 of its value. Sahu Har Prasad could not be considered to be bound by any order passed, behind his back and he could disregard it and dispute: the possession of the opposite party through other Karindas. It has been argued before me that Sheo Prasad and Pearey Lal led all such evidence as would have been produced, if Sahu Har Prasad was in name a party. I am unable to make this assumption. But even if this be accepted, the legal position remains the same. Sahu Har Prasad can maintain that he is not bound by any order passed in proceedings to which he was not in name a party.
4. The learned Counsel for the opposite party strongly relied on Section 537, Criminal P.C., and contended that the proceedings were in substance between Sahu Har Prasad and Badrul Jahan Begum and that the irregularity arising from the Magistrate's omission to implead Sahu Har Prasad by name has not occasioned any failure of justice and therefore the order complained of is not vitiated. The argument is based on the assumption that Sahu Har Prasad has not been prejudiced. I am unable to accept that assumption. Sahu Har Prasad had asserted a right to possession of the grove and had actually sold the produce of the grove to certain persons when Abdul Waheed Khan filed a complaint on which the proceedings commenced. The grove in dispute was subquently attached under the orders of the Magistrate and eventually possession was delivered to Badrul Jahan Begum. If Sahu Har Prasad's claim is well-founded and since No. opportunity was given to him to prove that it was so, the attachment of the grove and subsequent delivery of possession to Badrul Jahan Begum are clearly facts to his prejudice. In my opinion, Section 537, Criminal P.C., does not cure the irregularity. Accordingly I quash the proceedings of the Magistrate and his final order and direct him to proceed according to law, after considering the complaint of Abdul Waheed Khan, his statement on the back of it and the police report. Sahu Har Prasad and Badrul Jahan Begum should be called upon to file their written statements under Section 145 and to adduce evidence. The Magistrate shall, follow the provisions of Section 145, Criminal P.C., In taking fresh proceedings.