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TMI Blog1905 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... . But it has been held in a series of decisions of this Court that this does not affect the jurisdiction of the High Court to interfere under the powers of general superintendence vested in it by Sec. 15 of Stat. 24 and 25 Vict. C. 104; these cases, however, lay down that this Court should not ordinarily interfere under the Charter, unless it is found that the Magistrate taking proceedings under Ch. XII has acted without jurisdiction; See Hurhullubh v. Luchmeswar (1), Doulat Koer v. Rameswari (2), Laldhari v. Sukdeo (3). The same view has been taken by the Bombay High Court in In re Pandurang (4) and by the Allahabad High Court In re Nathu Mal (5) and Mahadeo v. Bisu (6), although in the later case of Maharaj v. Har Charan (7) the learned Judges of that Court went so far as to hold that Sec. 1.6 of the Charter Act does not override Sec. 435 of the Code of Criminal Procedure, so as to enable the High Court in the exercise of its powers of Superintendence to interfere with an order passed by a Court having jurisdiction under Ch. XII of the Code, interference with which in revision is excluded by Sec. 435, cl. (3). It is manifest, however, that the cases which recognise the power of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar question which calls for decision. A court cannot adjudicate upon a subject matter which does not fall within its province as defined or limited by law; this jurisdiction may be regarded to be essential, for jurisdiction over the subject matter is a condition precedent to the acquisition of authority over the parties; and if a court has no jurisdiction over the subject matter of the controversy, consent of the parties cannot confer such jurisdiction, and a judgment made without jurisdiction in such a case is absolutely null and void; it may be set aside by review or appeal or its nullity may be established when it is sought to be relied upon in some other proceeding. As regards jurisdiction in relation to persons, a Court cannot act upon persons who are not legally before it, upon one who is not a party to the litigation, upon a petitioner who has not invoked the exercise of its powers or upon a defendant who has never been notified of the proceedings; but, jurisdiction in relation to a person, is not essential in the same sense as jurisdiction in relation to the subject matter, because defect of suck jurisdiction may be waived. As regards jurisdiction in relation to the, partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut is at most an irregular proceeding liable to be set aside on the grounds defined in the Code. As an illustration of the second class of cases in which it has been held that non-compliance with the procedure laid down, in the Code, amounts to an illegality sufficient to invalidate the proceedings, reference may be made to the decision of the Judicial Committee in the case of Subramania Iyer v. King Emperor , in which their Lordships held that where a trial has been conducted in contravention of the provisions of Sec. 231 of the Criminal Procedure Code, such a trial is plainly prohibited and illegal; their Lordships pointed out the distinction between a mere irregularity and an illegality, and observed that when the Code positively enacts that a trial shall not take place in a particular mode, the contravention of the Statute cannot fall within the description of an irregularity. The question therefore arises, when it is alleged that there has been a non-compliance with the strict rules of procedure in any particular case, whether such non-compliance amounts to an irregularity or to an illegality. Now section 145 of the Criminal Procedure Code, after providing in clause (1), how t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown, that any party had been prejudiced thereby. In the case before us, the initial order was served upon both the parties in the manner prescribed by the Code, but it was not published upon or near the subject of dispute. The parties appeared before the Magistrate, took no objection to the regularity of the proceedings and adduced a mass of evidence upon the question of their respective possession of the land in dispute. The Magistrate has determined upon such evidence that the first party is in possession and has made the usual order under clause (6) of Sec. 145 in his favour. The second party against whom this order has been made now appears before this Court and invites us to set aside the whole of the proceedings on the ground that the initial order was not published on the land in accordance with Sec. 145, clause (3). It is not suggested that there are any third parties interested in the land who might have appeared before the Magistrate, if the order had been so published; nor is it suggested that either of the parties to the proceedings has been prejudiced in the remotest degree by the non-publication of the order. But the validity of the proceedings is broadly challenged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds upon which the propriety of the order of the Magistrate is questioned, can be successfully maintained and that this Rule should be discharged. 5. The only question on which we feel any doubt is whether we can discharge this Rule ourselves, or whether in view of the decision in the cases of Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. , Solemollah v. Ishan Chundra , and Havi Kissen v. Kasi Prasad and Rule No. 1, Chap. V of the Rules of this Court, we should refer the question of the correctness of the decision in these cases to a Full Bench. 6. The Rule with which we are now dealing has been issued under Sec. 15 of the Charter, not under the Code of Criminal Procedure. Still we are of opinion that Rule 1 of Ch. V, of the Rules of Court includes a point of law arising in a case in which we are exercising our jurisdiction under the Charter. 7. We therefore consider, it advisable to refer this case to a Full Bench and the question we would propound for their decision is:- Whether the omission to publish a notice under Sec. 145 cl. (3), Cr. P.C, at some conspicuous place at or near the subject of dispute is an illegality which deprives the Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide under Sec. 16 of the Charter. For instances where orders were set aside by the High Court, on the grounds of (a) omission to draw up initial orders under cl. (1). See Sukru Dosadh v. Ram Pergash , Krishna Kamini v. Abdul Jubbar , (b) omission to take evidence See Surya Kanta v. Hem Chunder , Manmaiha v. Baroda , (c) one party being debarred from adducing evidence, See Kali Nath v. Abhoy (10), (d) omission to serve notice on the spot, cases exactly in point. See Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. , Solemollah v. Ishan , (e) non-pnblication of notice under Reg. VIII of 1819 makes sale bad, See Maharajah of Burdwan v. Tarasundari, Ahsanullah v. Haricharn . The publication of the notice is an essential preliminary, omission of which makes the order of the Magistrate one without jurisdiction. Power of superintendence under Sec. 15 of the Charter exercised even when Sec. 622, C.P Code, did not apply. See Civil Rule No. 2009 of 1903 decided by the Chief Justice and Geidt, J. on the 24th July 1905. 16. Babu Brajendra Nath Chatterjee-for the Opposite Party.- The word "shall" may be used in a directory sense. Some of the cases are mentioned in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction. The jurisdiction of the Magistrate depends upon two essentials, viz. (1) probability of a breach of the peace, (2) his satisfaction as to such probability, See Krishna Kamini v. Abdul Jubbar . Ghose, J.:- If the Magistrate takes no notice of sub-section (3), what then? Rampini, J.:- That depends on whether the parties appear or not. If the parties appear, it is not a question of jurisdiction 21. When a Magistrate acquires jurisdiction properly upon the two essentials being fulfilled, any omission of any subsequent step in the procedure cannot affect his jurisdiction and make the order bad. 22. Even if the omission is more than an irregularity it is at best an illegality in the procedure which the High Court cannot revise. See Sec. 435. The power of the High Court cannot over-ride express provisions of law. Power of superintendence under the Charter must be exercised consistently with the Statutes made by the Legislature, See Sec. 38 of the Letters Patent for Bengal and the cases of, Kurrem v. Mohhoda and Maharaj Tewari v. Haricharan . The power of the High Court under the Charter is discretionary and it is not bound-to interfere in every case. See Sreemutty Dassee v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to pass orders under Sec. 145, C.P Code, See Secs. 35 and 36 of the Code and Schedule III, cl. (7). Cl. (1) of Sec. 145 does not give jurisdiction; jurisdiction already exists by virtue of Sec. 36 and Sch. III of the Code Sec. 145, Cr. P. Code, has been extended, to Calcutta and the other Presidency towns. Strict adherence to the clauses cannot be called matter of essentials which cannot be observed in detail by Presidency Magistrates. 26. The object of cl. (3) of Sec. 145 is to give notice to outsiders, persons on the spot not to commit breach of the peace. This is clear from cl. 4 in which nothing is said of these outsiders. 27. The test of illegality is express prohibition by the Legislature. See Subramania Ayyar v. King-Emperor . It was irregular not to affix the notice but, the affixing of notice is not to be connected with the governing idea of the section. The Legislature did not intend that no proceeding under Sec. 145 can go on without it. The argument based on the word "then" is not sound. The Magistrate may pro ceed with the case within 5 minutes of the publication of the notice under cl. (3). There is nothing in the section which: lays down that the Magistrate sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., is only under Sec. 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 caution. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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, C. Cr. P., in order to avoid any such question as the present being raised. 33. In our opinion the cases of Janu Manjhi…2Nd Party, v. Maniruddin…1St Party, Opposite Party. , Solemollah v. Ishan Chandra Das , and Hari Kishen v. Kashi Prosad , are not cases in which the Court, in exercise of its discretion under Section 15 of the Charter, should have interfered. 34. The proceeding under Sec. 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. The Rule is discharged. Ghose, J.:- The question referred to the Fall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice 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) law 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 referrence 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 v. Meer Mynoodeen Khan , and, as remarked by Banerjee, J., in the Full Bench case of Krishna Kamini, the order of the Magistrate may be interfered with under section 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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