Francis William Maclean, K.C.I.E., C.J.
1. The questions submitted to us is 'whether the omission to publish a notice under Section 145(3) of the Code of Criminal Procedure, at some conspicuous place at or near the subject of dispute, is an illegality which deprives the Magistrate of his jurisdiction.'
2. The question has been elaborately dealt with by the Refer-ring Judges in the Reference, and, as we concur in the main in their reasoning and in their conclusion, we do not think it necessary to deal with the matter at any great length. The power of interference, which we possess in relation to cases under Section 145 of the Code of Criminal Procedure is only under Section 15 of the Charter Act, which, in giving this Court a general power of superintendence over the Subordinate Courts, vests in it a power somewhat analogous to that of the King's Bench Division in the Supreme Court in England to interfere by mandamus, and in our opinion the power, which is' discretionary, ought in relation to cases under Section 145 to be exercised with every cantion. Assuming that in any particular case the Court has proceeded with irregularity, we do not think that this Court should interfere, unless it can be shown that some one has been materially prejudiced by such irregularity. If, however, the subordinate Court has acted without jurisdiction, this Court will interfere.
3. In our opinion the mere fact that the Court omitted to have a copy of the Magistrate's order, referred to in Section 145, published by affixing it in some conspicuous place at or near the subject of dispute did not deprive the Court of its jurisdiction to deal with the case. We express this opinion with some diffidence, as a different view has been expressed by Division Benches of this Court, which is entitled to every consideration and respect. Assuming that Sub-section (1) of Section 145 has been complied with, the Court had undoubted jurisdiction to deal with the case. Has this jurisdiction been lost by reason of the omission as to notice referred to above? We think not. We regard the provision as to publication of the order in Sub-section (3) of Section 145 as directory, and as a matter of procedure only, and not as destroying the jurisdiction of the Court, if not complied with. Sub-section (3) of Section 145 is clearly intended to provide for the manner in which the parties concerned, and such other person as the Magistrate may require to attend, are to be brought before the Court. But if the parties concerned should attend without being served with a copy of the order, it would be impossible to contend with any show of reason that an inquiry held in their presence would be without jurisdiction. So, if there was no suggestion that there was any one else interested, who could only be reached by the publication of a copy of the notice at or near the subject of dispute, it could not be said that the mere fact that a copy of the order had not been published on the spot would deprive the Magistrate of jurisdiction to proceed with the inquiry. Much reliance has been placed by the petitioner upon the word 'then' in Sub-section (4). It has been urged that the use of the word 'then' in Sub-section (4) renders the publication of the order locally a condition precedent to the passing by the Magistrate of a final order under Sub-section (6). But in our opinion the word 'then' applies 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.
4. 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 record', 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 some one interested has been materially prejudiced by the irregularity in procedure, the Court ought not to interfere under Section 15 of the Charter Act either in this or in similar cases. At the same time we desire to impress upon the Magistrates the necessity of a strict compliance with Sub-section (3) of Section 145 of the Code of Criminal Procedure in order to avoid any such question as the present being raised.
5. In our opinion the oases of Janu Manjhi v. Maiuruddin (1904) 8 C.W.N. 590, Nawab Khajah Solemollah v. Ishan Chandra Das (1905) 9 C.W.N. 909, and Hari Kishen Bhagat v. Kashi Prosad Singh Unrep. Cr. Rev. 472 of 1905 are not cases in which the Court, in exercise of its discretion under Section 15 of the Charter, should have interfered.
6. The proceeding under Section 145 is, in reality, a civil one; and the party, who considers himself aggrieved by the order, can come to a Civil Court for redress. The question must be answered in the negative.
7. The Rule is discharged.
Ghose J.
8. The question referred to the Full Bench for decision is, whether, when a Magistrate takes action under Section 145 of the Code of Criminal Procedure, but omits to publish a copy of his order, as contemplated by Clause (3) of the section at some conspicuous place at or near the subject of dispute, it is an illegality, which deprives the Magistrate of jurisdiction.
9. Section 145 of the Code is composed of several clauses. Under Clause (1) the Magistrate must be satisfied that there is a dispute likely to lead to a breach of the peace, and that such dispute relates to the possession of some land or water within his jurisdiction. And upon his being satisfied he shall draw up an order requiring the parties concerned in the dispute to attend his Court, and to put in written statements of their respective claims as regards the actual possession of the subject of dispute. Clause (3) requires that the order shall be served upon the parties concerned in such dispute and at least one copy thereof shall be published at some conspicuous place at or near the subject of dispute. under Clause (4) it is provided that the Magistrate shall 'then' peruse the statements put in by the parties, hear them, receive the evidence produced by them, and decide whether any or which of the parties was, at the date of the order before mentioned, in actual possession of the said subject-matter. It is not necessary to refer to the other clauses for the purposes of the decision of the question now before us.
10. It has been held by a long series of decisions of this Court that the requirements of law as prescribed in Clause (1) are essential conditions upon which the jurisdiction of the Magistrate is dependent. And it has also been hold in the case of Krishna Kamini v. Abdul Jubbar (1902) I.L.R. 30 Cale. 155, by the majority of the Judges, who composed the Full Bench, that Clause (3) of the section was intended to be only supplementary to Clause (1), and it was framed with the object of giving all persons interested in the dispute notice of the proceedings before the Magistrate, so that they might have an opportunity of appealing and putting in their claims, if they have any, and that, when the requirements of Clauses (1) and (3) are complied with, the Magistrate is to take up the inquiry as provided by Clause (4). It will be observed that the provision as to service of the order upon the parties, who might appear to the Magistrate to be concerned in the dispute, and as to the publication of the order at some' conspicuous place at or near the subject of the dispute, occur in one and the same clause; and I think it can hardly be said, as it was stated in the course of the argument before us, that though it may be that the service upon the parties concerned is essential, the publication of the order at the place is not so essential, and that' the provision as to such publication is but directory. Both stand, I think, upon the same ground. But, however that may be, it seems to me that the Magistrate acquires jurisdiction when the conditions as prescribed by Clause (1) have been fulfilled, and that Clauses (3) and (4) lay down the procedure by which the said jurisdiction is to be exercised. The procedure prescribed, however, is, as I read the section, mandatory and not simply directory. It , will be observed that in all the three Clauses (1), (3) and (4) the word 'shall' is used with reference to the performance by the Magistrate of the duties as prescribed therein; and it appears to me that when Clauses (3) and (4) contain express provision as to the procedure which the Magistrate is bound to follow in making his final order determining which of the parties should be maintained in possession, such procedure is mandatory: see Nusserwanjee Pestonjee v. Meer Mynoodeen (1855) 6 Moo. I.A. 134, 156, 157, and, as remarked, by Banerjee J., in the Full Bench case of Krishna Kamini v. Abdul Jubbar (1902) I.L.R. 30 Calc. 155, 188, the order of the Magistrate may be interfered with, under Section 15 of the Charter Act, when it is made 'without complying with the material preliminary conditions required to be satisfied by the procedure prescribed.'
11. I am, however, of opinion that when a Magistrate fails to comply with the provisions contained in Clause (3), he does not act without jurisdiction; for, as already observed, he acquires jurisdiction when the conditions prescribed by Clause (1) have been fulfilled; but I should think that, when he violates such provisions, he acts illegally in the exercise of his jurisdiction. What may be an illegal exercise of jurisdiction has been pointed out in various cases decided by the Courts in India and by the Privy Council: see Subrahmania Ayyar v. King-Emperor (1901) I.L.R. 25 Mad. 61 : L.R. 28 I.A. 257, Queen v. Bhohiiath Sen (1876) I.L.R. 2 Calc. 23, In re Pandurang Govind (1900) I.L.R. 24 Bom. 537 , and I am of opinion that, when a Magistrate acts illegally in the exercise of his jurisdiction by omitting to follow the express provisions of Clause (3), this Court in the exercise of the powers conferred on it by Section 15 of the Charter Act has the power to interfere.
12. But the exercise of such powers is not obligatory upon the Court. Section 15 of the Charter Act only confers upon the Court the general powers of superintendence; and I do not think that, when a Magistrate acquires a jurisdiction, after complying with the conditions prescribed by Clause (1) of Section 145, the non-compliance with the procedure prescribed by Clause (8) is such an illegality that makes it obligatory upon this Court to interfere. No doubt, the Court ought to interfere if prejudice to any party has been occasioned, or is likely to have been occasioned, by the failure on the part of the Magistrate to comply with the procedure as prescribed. In the present case no such prejudice appears to have been occasioned to any party: the 'parties concerned in the dispute were served with the Magistrate's order, and did appear, and it was not suggested by either of them in the Court below, nor has it been suggested before us, that there is some other party concerned in the dispute, who might have appeared if the order had been published in the locality. And it is noteworthy that it was only after the order of the Magistrate had been pronounced, and in order to enable the petitioner to move this Court, that a discovery was made by a search into the records of the case that the order in question was not published in the locality. In this view of the matter I do not think that this Court is called upon to interfere in this case under Section 15 of the Charter Act; and I should answer the question referred by saying that when a Magistrate makes an order determining which party should be maintained in possession without publishing a notice under Section 145, Clause (3), at some conspicuous place at or near the subject of dispute, he acts illegally in the exercise of his jurisdiction: but such illegality does not deprive him of jurisdiction to deal with the case.
Rampini J.
13. I agree in the judgment delivered by my Lord, the Chief Justice.
Pratt J.
14. I also agree in the judgment of the Chief Justice.
Henderson, J.
15. So do I.