PEARE LAL Vs. EMPEROR

JUDGEMENT

(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 26 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 19 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.