1. The challenge in this revision case is to a final order made under Section 145 of the Code of Criminal Procedure. One of the main contentions of the petitioner in this revision is that before passing the final order, the second respondent/Sub Divisional Magistrate, Devakottai, had not passed any preliminary order as required under Section 145(1) of the Code of Criminal Procedure, recording his satisfaction that there exists a dispute which is likely to cause a breach of the peace concerning any land or water or boundaries thereof.

2. The learned counsel Mr.T.Lajapathi Roy, appearing for the petitioner, would submit that recording his satisfaction by the Executive Magistrate that there exists a dispute between the parties, which is likely to cause breach of peace, alone gives jurisdiction to the Magistrate to proceed further and to pass a final order under Section 145(4) of the Code of Criminal Procedure. It is his further contention that without there being a preliminary order under Section 145(1) of the Code of Criminal Procedure, if any final order is passed under Section 145(4) of the Code of Criminal Procedure, the same is wholly without jurisdiction and the same shall stand vitiated. The learned counsel would further submit that the failure to pass a preliminary order under Section 145(1) of Cr.P.C. is not a mere irregularity, but it is a serious illegality which touches upon the very jurisdiction of the Magistrate to proceed further.

3. In order to substantiate his contention, the learned counsel has relied on a catena of judgments. The first judgment which he makes reliance upon is that of Honble Mr. Justice K.N.Basha in Thamaraiammal and another Vs. Executive Magistrate cum Revenue Divisional Officer, Chengalpattu and another, reported in (2007) 1 MLJ (Crl.) 928. In that case, the issue before the learned Judge was as to whether passing of the final order under Section 145(4) is vitiated in the light of the fact that there was no preliminary order under Section 145(1) of the Code. The learned Judge has relied on a Division Bench judgment of this Court in M.Krishnamoorthy Vs. P.M.Neelamegham, reported in 2004 (1) L.W. (Crl.) 22 and another judgment of a learned Single Judge of this Court in A.Baskara Narayanan Vs. So.Murugesan, reported in 2004 MLJ (Crl.) 50. The learned Judge has held that the final order made under Section 145(4) of the Code stood vitiated on account of the fact that there was no preliminary order under Section 145(1) of Cr.P.C.

4. The learned counsel Mr.Lajapathi Roy nextly relies on a judgment of a learned Single Judge Honble Mr. Justice K.M.Natarajan, in Natesa Thevar and others Vs. Executive Magistrate and Tahsildar, Thiruthuraipoondi and others, reported in 1987 L.W. (Crl.) 50, wherein also similar view has been taken. The learned counsel would submit that there are number of judgments wherein concurrent view has been taken by this Court holding that the absence of a preliminary order under Section 145(1) of Cr.P.C. vitiates the entire subsequent proceedings, including the final order made under Section 145(4) of Cr.P.C..

5. Mr.Isaac Mohanlal, the learned counsel appearing for the respondents 4 & 5 would seriously dispute the above legal position. According to him, passing of a preliminary order under Section 145(1) of the Code does not give jurisdiction to the Magistrate to proceed further. It is his further contention that recording the satisfaction of the Magistrate that there exists a dispute, which is likely to cause breach of peace, is only a subjective satisfaction and based not on any evidence, that too after giving opportunity to the parties. It is his further contention that the satisfaction is not with reference to the possession of the property as on the date of passing of the preliminary order. In the preliminary order, according to him, the Magistrate is required only to record his satisfaction on two counts viz., (i) there exists a dispute between the parties; and (ii) such dispute is likely to cause breach of peace. He would further point out that under Section 145(4) of Cr.P.C. when a final order is passed by the Magistrate, he is required to decide ultimately a different issue viz., as to who among the parties is entitled to continue to be in possession of the subject of dispute.

6. The learned counsel would fairly refer to a judgment of the Honble Supreme Court in C.A.Avarachan Vs. C.V.Sreenivasan and another, reported in (1996) 7 SCC 71 [LQ/SC/1995/406] . That case relates to a proceeding under Section 133 of the Code of Criminal Procedure. In that judgment, the Honble Supreme Court has held in paragraph No.4 as follows;

4. In our opinion the omission on the part of the Sub-Divisional Magistrateto draw up a preliminary order, which is a sine qua non for initiating proceedings under Section 133 of the Code of Criminal Procedure and without following the procedure provided for by Section 138 Cr.P.C., the order made by the Sub Divisional Magistrate on 13.01.1988 is unsustainable and is vitiated. The High Court fell in error in not properly appreciating the effect of non compliance with the mandatory requirements of drawing upon a preliminary order before proceedings under Section 133 Cr.P.C. Neither the order of the High Court nor that of the Sub-Divisional Magistrate can therefore be sustained.

7. Referring to the said judgment, the learned counsel would submit that so far as a proceeding under Section 133 of the Code of Criminal Procedure is concerned, as has been held by the Honble Supreme Court, passing of a preliminary order only gives jurisdiction to the Magistrate to proceed further and to pass a final order under Section 138 of Cr.P.C., whereas it is not so in the case of a proceeding under Section 145 of the Code. The learned counsel would make a comparison of Section 133 and 145 to substantiate his contention. He would point out that under Section 133(1) of the Code, the Magistrate is required to pass a conditional order requiring the person causing such obstruction or nuisance or carrying on any trade or occupation, etc. to remove such obstruction or nuisance; or desist from carrying on the particular occupation, etc. within a time to be fixed. The learned counsel would further point out that such an order under Section 133(1) has to be passed not only on receiving the report of a Police Officer or other information, but also on taking such evidence as he thinks fit. He would further point out that there is no mere recording of the satisfaction of the Magistrate, but there is an element of adjudication even at the preliminary stage itself. He would further point out that if any such preliminary order is passed under Section 133(1) of the Code, the party, against whom the same has been made, may obey the said order without objecting to the same. For any reason, if he objects to the same, a final order may be, thereafter, passed making the preliminary order absolute, after affording sufficient opportunity to the parties and after taking evidence in the matter as in a summon case (vide Section 138 of the Code).

8. Mr.Isaac Mohanlal, the learned counsel, would further submit that a preliminary order under Section 133(1) of the Code is, thus, totally different in form and content, from a preliminary order under Section 145(1) of Cr.P.C. Under Section 145(1) of Cr.P.C. the Magistrate simply records his satisfaction and there is no element of any adjudication and secondly, such satisfaction is to be arrived at not from any evidence as there is no requirement to record the evidence. Instead, such satisfaction is arrived at from and out of the Police report or from any other information. Thus, according to him, this is purely a prima facie satisfaction and not a well considered satisfaction amounting to any adjudication. The learned counsel would further submit that a preliminary order under Section 145(1) is not a positive order directing the party to do or not to do any act, whereas a preliminary order under Section 133(1) is a positive order directing the parties to do or not to do an act. Therefore, according to the learned counsel, the judgment of the Honble Supreme Court in C.A.Avarachan case cannot be applied to a proceeding under Section 145(1) of the Code.

9. The learned counsel appearing for the respondents 4 & 5 would further submit that the issue as to whether the failure to pass a preliminary order under Section 145(1) of the Code touches upon the very jurisdiction of the Magistrate, has not been dealt with by this Court in any judgment cited at the Bar. (I have also perused the judgments on the subject, wherein I find that in no judgment this issue has been dealt with). The learned counsel would rely on a Full Bench Judgment of the Patna High Court reported in AIR (36) 1949 Patna 146 [S.M.YAQUB AND OTHERS V. T.N.BASU AND ANOTHER], wherein, precisely, the question was whether the failure of the Executive Magistrate to record the satisfaction and to pass a preliminary order would deprive him of his jurisdiction to proceed further. The Full Bench, after having elaborately dealt with the said issue and also after having referred to the earlier judgments, has held in paragraph No.12 as follows:

12. With regard to the first contention, it is true that the Magistrate did not act on a police report. He acted on petitions filed by members of the first party only, and though he did hear the parties and has expressed the opinion that a danger of a breach of the peace existed, he did not state his grounds for that opinion. Under S.145(1), the Magistrate in his order drawing up proceedings shall state the grounds of his being so satisfied, and in this the Magistrates procedure is certainly not in accordance with the provisions of S.145(1). Nevertheless, I am of opinion that the High Court would be taking an unjustifiable risk and responsibility in interfering with an order merely for this reason when the Magistrate has definitely expressed his view that there is a danger to the public peace. The responsibility for maintenance of the peace is that of the Magistrate, not that of the High Court. The proceedings are only of a semi-judicial nature. To some extent they may be regarded as administrative. The failure to state the grounds, in my view, does not touch the question of jurisdiction. The ruling upon which Mr.Das has principally relied is Nittyanand Roy v. Paresh Nath Sen, 32 Cal.771. Therein it is laid down that if the Magistrate omits in the initiatory order under S.145(1) to state the grounds of his being satisfied as to the likelihood of a breach of the peace, the final order is without jurisdiction. That decision, in my opinion, betrays a confusion as to the nature of jurisdiction. I think no question of jurisdiction arises, and I repeat that when the Magistrate, who is responsible for the maintenance of the peace within his jurisdiction, has expressly stated that a danger of a breach of the peace necessitating action under S.145 exists, the High Court should not lightly interfere.

10. Subsequently, the very same issue came up for consideration before the Division Bench of Calcutta High Court in Khudiram Mandal vs. Jitendra Nath and another reported in AIR 1952 Calcutta 713. The Division Bench, in this case, had the benefit of referring to the Full Bench judgment of the Patna High Court referred to above. The Division Bench expressed full agreement with the view taken by the Patna High Court in the above case and held in Paragraph No.53 as follows:

53. The actual decision of the Full Bench did not expressly deal with this aspect of the matter but the view must be deemed to have been accepted, as it accepted the reasons and the conclusions contained the order of reference. In any event, we are in complete agreement with the reasoning and in my opinion, it is a complete answer to the point raised. The foundation of jurisdiction under S.145 is the satisfaction of the Magistrate. The rest is mere procedure. That procedure having been laid down must of course be strictly followed, and nothing that we say here is meant to be a premium to carelessness or as an encouragement to laxity. But the point is whether we should set aside proceedings where there are defects in procedure but no prejudice has been suffered by the parties. If the order was served in this form and the parties had no opportunity of discovering that it referred to the police report or as to what was said in the police report, or could not adduce proper evidence because of the want of the grounds or the inaccuracy of description of the property, we would at once have interfered. As I have pointed out, however, the parties knew of the grounds exactly and dealt with the same in their written statements and adduced evidence on the precise issue that is involved in the case. The parties are not bad; S.537, Criminal P.C., is conclusive on that point.

11. Referring to these two decisions, the learned counsel submitted that the failure of the Executive Magistrate to pass a preliminary order under Section 145(1) of Cr.P.C. does not relate to the jurisdiction of the Magistrate to proceed further and it is only an irregularity. As pointed out earlier, it is his contention that such irregularity would not automatically go to vitiate the final order, unless it is shown that because of the said irregularity, the parties have been either prejudiced or there has occurred miscarriage of justice. The learned counsel would also submit that the question of prejudice cannot be allowed to be raised at any stage of the proceedings, as it is a settled law that at the earliest point of time, the question of prejudice should be raised. In the instant case, according to the learned counsel, since there was no such question raised relating to the said irregularity, it is not open for the respondent, at this stage, to raise the same so as to get the final order quashed on that score.

12. I have considered the above submissions.

13. I am conscious of the fact that in a number of judgments, this Court has taken the view consistently that absence of a preliminary order under Section 145(1) of Cr.P.C. vitiates all subsequent proceedings, including the final order. But, as rightly pointed out by the learned counsel Mr.Isaac Mohanlal, I find that in none of the judgment, the precise issue as to whether passing of a preliminary order under Sub Section (1) of Section 145 gives jurisdiction to the Magistrate to proceed further or not, has been dealt with. In many of the judgments, the Courts have relied on judgments relating to proceedings under Section 133 of the Code and they have applied the same mutatis mutandis to the proceeding under Section 145 of Cr.P.C as well. I find force in the argument of Mr.Isaac Mohanlal that the judgments relating to the proceeding under Section 133 of Cr.P.C. cannot be of any help to a proceeding under Section 145 of Cr.P.C. In other words, those judgments cannot be made applicable to a proceeding under Section 145 of Cr.P.C. As pointed out by Mr.Isaac Mohanlal, undoubtedly passing of a preliminary order under Section 133(1) of the Code gives jurisdiction to the Magistrate to proceed further and to pass a final order. In such a proceeding, the Magistrate is required to act not only on the report of the Police Officer or from any other information, but also he is required to take evidence before passing preliminary order. Whereas, before passing a preliminary order under Section 145(1) of the Code, there is no scope for him to record any such evidence. Under Section 133 of Cr.P.C. the Magistrate is required to pass a positive order directing the parties, against whom the order is passed, to obey, whereas under Section 145(1) of Cr.P.C. no such order can be passed directing the parties either to do or not to do an act.

14. Under Section 136 of the Code, if such person against whom preliminary order under Section 133(1) has been passed does not perform such act or appear and show cause, he shall be liable to the penalty prescribed in that behalf in Section 188 of IPC and the order shall be made absolute thereafter. But, so far as a preliminary order under Section 145(1) of the Code, there is no such penalty prescribed for the failure of the party to appear, instead the Magistrate can only proceed ex parte.

15. Above all, the preliminary order made under Sub-section (1) of Section 133, is made absolute by the Magistrate by passing a final order. Thus, the issue under consideration while passing a preliminary order as well as while passing a final order under Section 133 of the Code is one and the same. But, notably, in the case of Section 145 of the Code, it is not so. The issue under consideration for recording satisfaction of the Magistrate under Section 145(1) Cr.P.C. is that there is dispute between the parties pertaining to land, water, etc. and that the said dispute is likely to cause breach of peace, whereas in the final order the issue is totally different, i.e., the issue is as to who among the parties is entitled to continue to be in possession of the property. As it is done under Section 133 Cr.P.C., the preliminary order passed under Section 145(1) Cr.P.C. is not made absolute under Section 145 (4) of the Code, since the issues under consideration are totally different. To repeat, under Section 133 Cr.P.C. in both the stages i.e., at the stage of preliminary order and at the stage of final order, the issue is one and the same, whereas the issues under consideration under Sections 145(1) and 145(4) Cr.P.C. are different. For these reasons, I am also of the view that the judgment of the Supreme Court in C.A.Avarachan case and any other judgment for that matter from this Court or from any other High Court or the Honble Supreme Court under Section 133 of the Code cannot be made applicable to a proceeding under Section 145 of the Code.

16. Now, turning to the judgments pertaining to the proceeding under Section 145 of the Code, no judgment of the Honble Supreme Court has been cited at the Bar to substantiate the legal proposition propounded by Mr.Lajapathi Roy, the learned counsel for the petitioner, that the preliminary order passed under Section 145(1) of the Code alone gives jurisdiction to the Magistrate to proceed further and to pass a final order. Similarly, there is no judgment from the Supreme Court cited at the Bar to show that failure to pass a preliminary order vitiates the final order passed subsequently under Section 145(4) of the Code.

17. Now, turning to the Division Bench judgment of this Court, referred to by Mr.Lajapathi Roy, in M.Krishnamoorthy Vs. P.M.Neelamegham and others, reported in 2004 (1) L.W. (Crl.) 22, the issue was totally different in that case. There was a combined order passed under Sub-section (1) and Sub-section (4) of Section 145 of the Code clubbing both together. There, the Division Bench held that the said order which encompasses both the preliminary as well as final order does not satisfy the legal requirements and therefore, the same is vitiated. The Division Bench does not have the occasion to go into the question as to whether the failure to pass a preliminary order under Section 145(1) of the Code touches upon the very jurisdiction of the Magistrate to proceed further. In the judgment of the Honble Mr. Justice K.N.Basha, reported in 2007 (1)MLJ (Crl.) 928 also, I do not find that the learned Judge had occasion to consider the question as to whether the absence of a preliminary order touches upon the jurisdiction of the Magistrate to proceed further. The learned Judge has relied on the judgment of the Division Bench and has held that the failure to pass a preliminary order vitiates the final order.

18. As referred to above, the Full Bench of the Patna High Court and the Division Bench of Calcutta High Court had occasion to precisely deal with the same question as to whether the preliminary order gives jurisdiction to the Magistrate to proceed further. The Full Bench has held that the failure to state the reasons in the preliminary order does not touch the question of jurisdiction. The Division Bench of Calcutta High Court in Khudiram Mandal case, reported in AIR 1952 Calcutta 713, has held that the foundation of jurisdiction under Section 145 of Cr.P.C. is the satisfaction of the Magistrate. The rest is mere procedure. That procedure having been laid down must of-course be strictly followed and nothing that we say here is meant to be a premium to carelessness or as an encouragement to laxity. But, the point is whether we should set aside the proceedings where there are defects in procedure but no prejudice has been suffered by the parties.

19. From these observations of the Division Bench, it is obvious that the view is that mere failure of the Magistrate to pass a preliminary order shall not vitiate the final order. Instead, the Court is required to examine the question as to whether it has caused any prejudice to the party concerned or whether the same has resulted in failure of justice. If the failure of the Magistrate to pass a preliminary order is treated as an illegality, then, of-course, undoubtedly the entire proceedings shall be vitiated, in which case the question of prejudice or miscarriage of justice need not be gone into. But, once it is held that such failure to pass a preliminary order is only a procedural irregularity, it becomes absolutely necessary for the Court to go into the question as to whether such procedural irregularity has resulted in failure of justice or to cause any prejudice to the adverse parties. Thus, the issue to be decided in such a situation is as to whether passing of a preliminary order gives / creates jurisdiction to the Magistrate to proceed further or it is only the first step in the procedure to be followed. Since this issue has not been dealt with in any of the judgments of this Court and since the Full Bench of the Patna High Court and the Division Bench of Calcutta High Court have taken contrary view to the view taken by this Court and in view of the fact that every year innumerable cases are quashed by this Court by following the view taken by this Court and in order to have an authoritative pronouncement on this issue, I consider it necessary to refer this matter to the Honble Chief Justice for placing the following questions of law before a Larger Bench to answer. As the issue is of a great public importance, I recommend for the constitution of a Full Bench.

20. The questions are:

(i) Whether the absence of a preliminary order under sub section (1) of Section 145 of Cr.P.C. would affect the very jurisdiction of the Executive Magistrate to proceed further and to pass final order under Section 145 of Cr.P.C.

(ii) Whether the failure of the Executive Magistrate to pass a preliminary order under Section 145(1) of the Code is a mere irregularity or is it an illegality, affecting the very jurisdiction of the Magistrate

(iii) If it is answered that it is only an irregularity, whether such irregularity would vitiate the final order, automatically, even in the absence of any prejudice or miscarriage of justice to the parties

(iv) If it is answered that absence of a preliminary order is only an irregularity, whether the party aggrieved is required to raise objection at the earliest point of time or is it suffice if such an objection is raised at any stage subsequently

21. The Registry is directed to place the papers before the Honble Chief Justice for consideration.