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Madras High Court
Sayid Mahomed Ghouse Saheb And … vs Sayid Khadir Badshaw Saheb on 31 January, 1906
Equivalent citations: (1906) 16 MLJ 148
Author: S Aiyar


Subrahmania Aiyar, J.

1. Mr. Sivaswami Iyer has drawn my attention to several decisions of the other High Courts in which it was pointed out that an order passed under Section 145 of the Criminal Procedure Code would be without jurisdiction if no preliminary order required by the section had been passed. On the other side the Public Prosecutor referred me to proceedings of this Court at page 98 of Weir’s Criminal Rulings, 4th Edition, which treats an omission to record such an order as an irregularity which would not affect the validity of the order if thereby the parties to the Proceedings were not prejudiced in properly placing their case before the court. It is not necessary for me to consider the point inasmuch as I find that the Magistrate did in fact record an order in which he stated upon information received by him and upon the petition presented by one of the parties to the proceedings that there was a likelihood of a breach of the peace and called upon the person specified in the order to put in written statements as to their claims respectively in regard to the question of possession. No doubt he does not state in detail the grounds for the conclusion that there was a likelihood of a breach of the peace. But the fact mentioned in the petition referred to in the order, viz., that a gang of about 60 men had been brought from Tanjore, Trichinopoly and other places by the counter-petitioners for the purpose of forcibly taking possession was apparently not denied. The counter-petitioners did not allege that there was no likelihood of a breach of the peace, but put in written statements requesting the Magistrate to proceed under chapter XII of the Code. In these circumstances, I am unable to accede to the contention that the order is invalid. In this view, it is not open to me to consider the merits of the order maintaining the senior widow’s possession. The order, as I read it, is confined to immoveable property only. The petition is dismissed.

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