' This petition for leave to appeal wants to call up and quash the order of High Court, made on 18- 10-1982, whereby the attachment order of disputed land measuring one Marla, recorded by the Sub-Divisional Magistrate Kotli on 1.4-1982 under section 145, Cr. P. C., was held to be validly made resulting in the dismissal of the application made under section 561-A, Cr. P. C. For the quashment of the said attachment order.
2. The main grouse of the petitioners before the High Court was that the preliminary order under section 145, Cr. P. C. Having not been made in strict conformity with the provisions of the section needs to be recalled under section 561-A, Cr. P. C.
3. I have heard the learned counsel for the parties. This petition has become infructuous because the proceedings under section 145, Cr. P. C. Have been finally concluded by the Sub-Divisional Magistrate Kotli on 2-4-1983, the photostat copy of the judgment has been placed on the file. Mr. Muhammad Sharif Tariq, Advocate, does not contest this fact.
4. Even on facts this petition merits no consideration. The High Court undoubtedly has the jurisdiction to quash the proceedings under section 561-A, Cr. P. C., if it is satisfied that the proceedings amount to an abuse of the process of the Court.
5. Let me see as to whether the order passed by the S. D. M. Can in any way be said to have abused the process of the Court. Under section 145, Cr. P. C. An order, in writing, stating the grounds of satisfaction of the Magistrate, can legally be made. This statutory provision does not prescribe the mode for the exercise of the jurisdiction. It is correct that the Magistrates are expected to exercise the jurisdiction in conformity with the provisions of law stipulated under section 145, Cr. P. C., but to say that the failure to follow the prescribed mode must in every case render the exercise of the jurisdiction invalid and illegal is not the spirit of law and it is too wide a proposition.
6. The elements necessary for foundation of jurisdiction under section 145, Cr. P. C. Are :-
(i) there should be a dispute to cause a breach of peace ;
(ii) the dispute must refer to land or water or the boundaries thereof; and
(iii) such land or water etc. Must be situated within the territorial jurisdiction of the Magistrate.
' If these elements are present, they are sufficient to vest the Magistrate with the jurisdiction to make the preliminary order in the mode prescribed under. Section 145, Cr. P. C. If the Magistrate, after having acquired the jurisdiction, fails to comply strictly with other requirements of the section as to the form of the order and does not state the grounds of his zing so satisfied, the order is no doubt defective but this would not mean that the order is also without jurisdiction amounting to an abuse of the process of the Court.
7. The jurisdiction to make the order depends upon the existence of the ingredients necessary for the foundation of jurisdiction. Once the Court has validly acquired the jurisdiction, as the case is before me, it cannot be said that it has only 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. I am, therefore, unable to subscribe to the view of Mr. Sharif Tariq the learned counsel for the petitioners, that omission to state grounds upon which the High Court is satisfied in the initial order under section 145, Cr. P. C. Necessarily makes the order without jurisdiction. The most that can be said is that the failure to do so is a noncompliance with a rule of procedure and it is now well-settled that mere non-observance with a rule of procedure per se generally is not an illegality vitiating the entire proceedings.
In the result, the petition, being incompetent as well as having no meristic fails.
Petition dismissed.