Monoj Kumar Mukherjee, J. - (1.) On the basis of an application filed by the opposite party to the present Rule and the police report in respect of the same, the learned Sub - divisional Magistrate, Diamond Harbour passed an order drawing up a proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as the Code), attached the land in question and appointed a Receiver in respect thereof. Against the said order, the petitioners, who figured as opposite parties in the proceeding, moved this Court in revision but did not pursue the matter of being advised to file an application under section 145(5) of the Code. Accordingly, the petitioners filed an application before the learned Magistrate for cancellation of the proceeding on the ground, Inter alia, that no dispute existed concerning the land. By his order dated March 10, 1979 the learned Magistrate rejected the aforesaid application and decided to continue with the proceeding. Hence this Rule.
(2.) It was argued by the learned Advocate appearing for the petitioners that the two prerequisites for initiating a proceeding under section 145 of the Code were (i) the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water and (ii) recording the grounds of such satisfaction and since in the initial order drawn up by the learned Magistrate, those conditions have not been fulfilled the entire proceeding is without jurisdiction. The' opposite parties on the other hand submitted that the contentions of the petitioner cannot be entertained at this stage as their grievance in the present Rule was not against the order drawing up the proceeding but against the order rejecting the application under section 145(4). The opposite parties further' submitted that even if the petitioners were,allowed to urge their grounds challenging the order drawing up the proceeding the same were devoid of any merit having regard to the fact that non-compliance with the requirements of section 145(1) is only an irregularity and since no prejudice has been caused to the petitioners, the proceeding should not be quashed.
(3.) To appreciate the respective contentions of the parties it will therefore be necessary first to ascertain the requirements for drawing up a proceeding under section 145 of the Code and whether failure to comply with such requirements make the proceeding void ab Initio. From a plain reading of section 145(1) it would appear that before initiating a proceeding the Magistrate must satisfy himself that a dispute regarding land or water exists and that such dispute is likely to cause a breach of peace. It is only when the Magistrate arrives at his satisfaction of those two conditions that the Magistrate assumes jurisdiction to make an order under the said section. The other requirement of the section is to record the grounds for such satisfaction in the initiatory order. In other words, while the satisfaction gives the jurisdiction to the Magistrate to pass ail order, the recording of such satisfaction is the mode of exercise of such jurisdiction. It necessarily follows that if the learned Magistrate records an order without the satisfaction he wrongly assumes the jurisdiction but if the satisfaction is there but the grounds of satisfaction are not stated in the initial order he wrongly exercises the jurisdiction, if the former is absent the order and all further proceeding which follows the order, will be therefore without jurisdiction.;