Law: Criminal Procedure Code (V of 1898)

Section: 145

Criminal Procedure Code (V of 1898), S. 145-Jurisdiction to make preliminary order under S. 145 depends on existence of elements necessary for founding jurisdiction-Mere omission to state grounds upon which Court satisfied-Does not make order without jurisdiction. There is a distinction between the elements, which are essential for the foundation of jurisdiction, and the mode in which such jurisdiction has to be exercised. The elements necessary for the foundation of jurisdiction under section 145 of the Criminal Procedure Code are that the Magistrate must be satisfied : (a) that a dispute likely to cause a breach of the peace exists, (b) that the dispute refers to land or water or the boundaries thereof, and (c) that such land or water is situated within the limits of hi: territorial jurisdiction. If these elements exist, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed therein. If the Magistrate after having acquired jurisdiction does not strictly comply with the other requirements of the section as to the form of the order and does not state the ground of his being so satisfied, the order is no doubt defective, but this does not mean that the order is also without jurisdiction. The jurisdiction to make the order depends upon the existence of the elements necessary for founding the jurisdiction. Once the Court has validly acquired that jurisdiction, it cannot be said that it has only the jurisdiction to make a correct order in the prescribed form and that whenever the order is incorrect or defective, the order must also be held to be without jurisdiction. It cannot therefore be held that the mere omission to state the grounds, upon which the Court is so satisfied, in the Initial order under section 145 of the Criminal Procedure Code necessarily makes the order also without jurisdic tion. The most that can be said is that the failure to do so is a non-compliance with a rule of procedure and mere non compliance with a rule of procedure generally is not an illegality vitiating the entire proceedings. Date of hearing ; 20th December 1972.                …