SUKH LAL SHEIKH Vs. TARA CHAND TA

JUDGEMENT

(1.) The questions submitted to us is "whether the omission to publish a notice under Section 145(3) of the Criminal P. C., 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 Criminal P. C. 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.