Mariasusai Udyan and Others vs Hajee Mahamud Azezudeen Sahib Bahadur

Burn, J.—There was nothing lo prevent the learned Sub-Divisional Magistrate from drawing up a preliminary order u/s 145(1), Code of

Criminal Procedure on the date on which he decided that the case was one properly falling u/s 145, Code of Criminal Procedure. I do not

understand what he means when he says it was ""impossible"". The importance of this is that the question of possession has to be decided with

reference to the date of the preliminary order (see Section 145(4) Criminal Procedure Code) and if there is no preliminary order the one question

which the Magistrate has to decide cannot be decided. The learned Magistrate has referred to the date of the ""cause of action"" without explaining

even what that date was. The learned Advocate for the Respondent contends that this was the date in September 1935 when the learned Sub-

Divisional Magistrate decided to ""convert"" the case into one u/s 145, Criminal Procedure Code. This may be correct but it is far from self-evident.

The learned Public Prosecutor on the contrary contends that the ""cause of action"" must have arisen when the dispute likely to occasion a breach of

the peace came into existence, or was brought to notice. This is a much more probable explanation in my opinion. ""Cause of action"" in connection

with these proceedings is in any case a very unsuitable expression. In Civil Proceedings it has a technical meaning, and it should not be imported

into Criminal Proceedings at least without a clear explanation of what the learned Magistrate thinks it means. The decisions of this Court so far tend

to show that unless there is a preliminary order u/s 145(1) Criminal Procedure Code, the Magistrate has no jurisdiction to pass any order u/s

145(6) Criminal Procedure Code. These decisions I would say with all respect are correct for the reason which I have already indicated. The

conduct of the petitioners in allowing the learned Magistrate to go on without objection is no doubt reprehensible, but it cannot validate an order

which is without jurisdiction. The order of the learned Sub-Divisional Magistrate is therefore set aside.