- (1.) THIS is a reference by the Additional Sessions Judge, Khetri, under section 436 of the Code of Criminal Procedure recommending that the Sub-Divisional Magistrate, Khetri, be directed to comply with the provisions of sub-section (3) of section 145 of the Code of Criminal Procedure before proceeding to enquire into the question of possession under sub-section (4) of that section, in a case under section 107/145 of the Code of Criminal Procedure against Harji and others pending in his Court.
(2.) THE facts of the case, in brief, are that Faqir Chand filed an application before the Sub-Divisional Magistrate, Khetri, under section 107/145 of the Code of Criminal Procedure on the 9th of June, 1949, upon which notices were ordered to be issued to the opposite parties according to law. As none of the parties was present on the date fixed for hearing, i. e. , on the 21st of June, 1949, the case was adjourned to 13th July, 1949. On that date only one of the parties appeared, and adjournment was given for the 21st of July, 1949, but on that date also the case was adjourned to the 5th of August, 1949. Again there were several adjournments and ultimately on the 20th of September, 1949, the opposite parties were present, but as the complainant's witnesses were absent, the learned Magistrate fixed 7th October, 1949, for hearing and ordered him to pay Rs. 40/- as costs to the opposite parties. Against this order the complainant moved the Additional Sessions Judge, Khetri. THE learned Additional Sessions Judge was of the opinion that a notice as required by sub-section (3) of section 145 of the Code of Criminal Procedure was not published by being affixed to some conspicuous place at or near the subject of dispute, and the noncompliance with the mandatory provi-sion of the aforesaid sub-section vitia-ted the proceedings of the Sub-Divisional Magistrate, and, therefore, he has recommended that the Sub-Divisional Magistrate be directed to comply with these provisions before proceeding to enquire into the question of possession under Sub-section (4) of the said section. The learned Additional Sessions Judge has relied on the decision reported in A. I. R. 1916 Patna 578. According to him the Magistrate before proceeding to enquire into the question of possession ought to have satisfied himself that the provisions of sub-section (3) of the said section have been fully complied with. It may be observed that the provisions of sub-section (3) of section 145 are no doubt mandatory. The said sub-section reads as follows : "a Copy of the order shall be served in manner provided by this Code for the service of a summons upon such person or persons as the Magistrate may direct, and at least one copy shall be published by being affixed to some conspicuous place at or near the subject of dispute. " But in this case it is not- alleged that the service of summons on the opposite party was not affected in the manner provided by the Code of Criminal Procedure. The proceedings. of the Sub-Divisional Magistrate are recommended to be quashed only on the ground that a copy of the order was not affixed to some conspicuous place at or near the subject of dispute. The question for determination in this case is whether the non-compliance of this provision affects the jurisdiction of the Magistrate and thereby renders his proceedings void. There is a difference of opinion between the different High Courts of the Dominion of India in regard to this point. The Patna and Nagpur High Courts in A. I. R. 1917 Patna 71 and A. I. R, 1918 Nagpur 46 respectively have held that a failure to carry out the provisions of sub-section (3) of section 145 of the Code of Criminal Procedure renders the proceeding of the Magistrate without jurisdiction. But the Calcutta High Court in a Full Bench Ruling {33 Calcutta 68) has held that an omission to carry out the procedure laid down for the service or publication of the order is not an error of jurisdiction, but, if anything, an irregularity which may be sufficient to invalidate the proceedings only in cases where the parties are prejudiced by reason of such irregularity. Their Lordships of the Privy Council in Abdul Rahman vs. Emperor (A. I. R. 1927 P. C. 44) have held that the bare fact of an omission or irregularity in a matter of procedure unaccompanied by any suggestion of probable failure of justice having been occasioned thereby, is not sufficient to invalidate the proceedings. There fore, in this case unless it be shown that by the Sub-Divisional Magistrate's omission to affix a copy of the order to some conspicuous place at or near the subject of dispute has in fact prejudiced the parties, the omission is not sufficient to invalidate the Magistrate's procedure. No such prejudice seems to have been caused to the parties who were aware of the order of the Magistrate and Were attending the Magistrate's Court with their witnesses to prove the factum of actual possession. The omission of the Sub-Divisional Magistrate in publishing the notice as required by sub-section (3) of section 145 of the Code of Criminal Procedure is, therefore, at best a mere irregularity, and it does not vitiate his proceedings. On the last date the witnesses of the applicant were not present and he wanted an adjournment the Court had jurisdiction to grant an adjournment after allowing costs to the other parties, and, therefore, in this matter too the Sub-Divisional Magistrate cannot be said to have acted beyond his jurisdiction. Of course, the amount of costs appears to be rather heavy. It will not be improper if the recommendation of the learned Additional Sessions Judge is accepted in respect of costs, and the amount is reduced to Rs. 10/- only. The reference is, therefore, partly accepted, as indicated above. . ;