Bhat, J.

(1) The reference originally came before me. It was argued by the learned counsel for the respondent that there was a Division Bench authority of this court reported as A. I. R. J & K 1959, 16 which had taken a view contrary to the views expressed by me in some cases about the contents and validity of a preliminary order under Section 145 Cr. P C. I, therefore, thought it fit to refer the matter to a Full Bench of this court for an authoritative pronouncement.

(2) The facts giving rise to this reference are that proceedings were started under Section J45 code of criminal Procedure by Dhanna against Manga and others pertaining to a house in Gajansou. The preliminary order passed by the trial court, which has been reproduced by the learned Sessions Judge in his order of reference is as under :

"advocate sial wa sial hazar, sial ka bian kalamband kia gia, iska izhar ha ka iske masi to iska pass rahti ha aur gis ki parbarash wohi karta tha, arsa bees pachees roj sa mar gae ha aur is ne isko jais waris karar apne hiat ma hi da dia tha, lakan roasolan manga, sarsow, sewa, parkash, ananti na ak jabardast party bina rakhi ha aur inke niet arsa se makan matwafia par kawis he thi ka mabarkha 17669 ko majar aur majar ka iyal ko gahardasti mukay mar kar makan se bahar nakal dia aur oaakan aur, makan main mazooda karansi aught hajar rupaya wa chandi rupaya ak hajar rupaya aur digar saman mazooda andar makan par kabis ho chukay hain aur ilania kahten hain ka agar majar sial makan main dowara dakhal honay ki koshish ki toe jan sae halak kar dain gay, lahaza masoolan koe jaer dafa 145 jabta foojdari notas diya jawey ka kaon na hasab istadawa siel makan wa jiadad andar ko kisi motwar shakhas ka supard kiya jabey misal batkarar 15 July, 1969 paesh howey tehreer sadar hoe."

(3) Therefore the proceedings were held under the provisions of sections 145 Code of (Criminal procedure which terminated in favour of Dhanna declaring him to be in possession of the .property :and the other party was prohibited from disturbing his possession till he was Evicted by a competent court in due course of law. A revision was performed before the learned Sessions Judge. Jaramu, who has remarked that the preliminary order passed by the trial Magistrate in this case is not in accordance with law. The learned Sessions Judge has held that the trial Magistrate has not satisfied himself as to the existence of a dispute likely to cause breach of peace nor has he recorded the grounds of his being so satisfied; the Magistrate never issued a direction requiring thenonapplicants to put in their written statement of their claims in respect of the fact of actual possession and to produce all documentary arid affidavit evidence on which they rely in support of their claims. According to the learned Sessions Judge, the .Magistrate only reproduced the allegations or applicant and directed, the issue of notices to the nonapplicants to show cause as to why the house and other property be not given on the Superdnama to a respectable person Such an order in the opinion of the learned Judge was not covered; bys any provision of law.

(3) We have heard the learned counsel for the parties.

(4) After hearing them we feel that there is nothing in this case which requires a serious consideration by a Full Bench of this court. I have produced the preliminary order in verbatim. After reproducing the statement of the petitioner before the court below, the first court has simply stated that the non applicants be given a notice under section 145 Cr. Pr. code as to why, as requested by the, applicant, the disputed house and the property may not be entrusted to some respectable person. This is the order passed by the trial court. Actually there is no preliminary order passed by the trial Magistrate in this case. When no order was passed by the Magistrate under, subsection (I) of Section 145 Code of Criminal Procedure, the necessary particulars for such an order, as held by different authorities on the plain language of this section being namely :

(i) a statement that the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace :

(ii) the grounds of being so satisfied

(iii) The correct description of the property

(iv) a direction requiring the persons involved in the dispute to attend his court within a time to be fixed and put in written statement of their claim in respect of the issue of actual possession : and

(v) a further direction to produce all documentary and affidavit evidence on which they rely.

are absolutely lacking in this case. Therefore this case without any further discussion of the law on the subject can be disposed of and the only course to dispose it of is to set aside the entire proceedings taken by the trial Magistrate right from the time of drawing of the first order dated 15th July 1969 and directing the Magistrate to pass a proper preliminary order and then start the proceedings afresh after going through the provisions of Section 145 Code of Criminal Procedure.

Although it is not necessary to discuss the authorities on this point yet as it was argued at one stage that AIR 1959 J & K 16 is contrary to the views expressed by me in two cases reported as AIR 1964 J&K I, and AIR 1965 J & K 49. We would like to throw some light on point, When this case was argued before us another authority which is a Full Bench authority of this court reported as AIR 1V58 J & K 17, was brought to our notice. In that case it was held that where no order had been drawn up in terms of SubSection (I) of Section 145 Code of Criminal Procedure, Section 537 of the Code would not be applicable and the invalidity was incurable. The failure to draw up a preliminary order in itself would cause prejudice to the other side. This authority clearly covers the present case. The other authority viz: AIR 1959 J & K 16 simply says that :

The jurisdiction of a Magistrate to take action under section 145 Criminal P. C. arises from the fact that he has received certain information and that be is satisfied as to the truth of that information. The jurisdiction does not depend on how he proceeds. If he has jurisdiction, he is not deprived of it merely because his procedure is erroneous or defective ............... where no miscarriage of justice

was caused to the party by the fact that the preliminary order was not drawn up strictly in accordance with the provisions of Sec. 145 the parties were present before the trial Magistrate, and he had evidence but no objection was taken by any party that the preliminary order was defective.

(5) It was held that :

"In these circumstance it would not be proper to quash the proceedings and allow the parties to agitate the matter once again in the trial court which would involve them in unnecessary expense and inconvenience.

(6) But this authority with utmost respect to the learned Judges who gave it, cannot be any defects in a preliminary order under section 145 Code of Criminal Procedure. This authority follows an earlier Full Bench Allahabad authority reported as AIR 1933 All. 264 It does not mention any facts nor does it mention or point out the defects that were in the preliminary order passed in that case. The two cases decided by me reported as AIR, 1964 J&K I and AIR 1965 J&K 49 have considered the points arising in those cases. There is no conflict between AIR 1959 J&K 16 and either of those two authorities. In AIR, 1964 J&K 1 the orders were passed in the hand writing of the clerk and the presiding Officer had not at all applied his mind to the facts of that case. The place where; the property was situate was neither mentioned in the application nor in the preliminary order and; it was further held that Section 145 had no application to properties jointly possessed by the constants. In AIR J&K 49 the Magistrate had omitted to record his satisfaction about the existence of a dispute between the parties likely to cause breach of the peace; the village of the disputed property was, not mentioned, there was no direction to the parties to file objections etc: Therefore I held that the proceedings were not properly drawn up. Although a full discussion of the authorities on the points of defects in the preliminary order under section 145 of the Code of Criminal Procedure is not at all sailed for in the circumstances of this case yet it may be mentioned that there are some authorities which hold that failure to set out the grounds in the preliminary order, failure to specify the property in dispute in the order; failure to serve or publish notice as required by subsection (3) of Sec: 145 of the Code if Criminal Procedure are violations .of mandatory previsions of law and renders all subsequent proceedings void and without jurisdiction. Reference may be made to, AIR 1945 Oudh 62, AIR 1942. Sindh. 117 AIR 1952 Patna 234, and AIR 1953 Orissa 281 so on and so forth. But there are other authorities also which lay down that the bare fact of an omission or irregularity in a matter of procedure unaccompanied by any suggestion of probable of justice haying been occasioned thereby is not sufficient to invalidate the proceedings. The test has been held to be whether the parties have been prejudiced by reason of such irregularity or omission; if inspite of a failure to conform to the provisions substantial justice has been done, the defect is cured under section 537 Code of Criminal Procedure and the final order will not be interfered with in revision. Reference may be made to AIR 1927 P. C, 44, AIR 1949 Patna 146, AIR 1957 Nag. 27. AIR 1955 Allahabad 51, AIR 1955 Allahabad 478, and AIR 1952 Assam 185 etc, etc.

(7) We also might incidentally remark that if the omission in the preliminary order does not cause prejudice or it is not suggested that miscarriage of justice has taken place because of omission, if the parties knowing the nature and the subject matter of the dispute clearly fought out the case in the trial court, the defects in the preliminary order will not vitiate the entire proceedings. But in this case as already stated there is no preliminary order and hence in the words of AIR 1958 J&K 17 (F. 8) the whole proceedings would be void and there will be no question of curing the defect under section f 37 Cr. PR. Code.

(3) The result is that the reference is accepted and the case sent back to the trial Magistrate to draw up a preliminary order in terms of Section 845 Code of Criminal procedure and then decide the case afresh after giving the parties an opportunity to adduce any documentary; affidavit or other evidence as required by that section.