RAM LABHAYA, J. : This is a reference under S. 438 of the Code of Criminal Procedure from the Court of the Sessions Judge, L.A.D. The reference arises out of a pro­ceeding under S. 145, Cr. P. C. The facts leading to the reference may briefly be stated. (2) On 22-1-53, Rameswar Goenka, the first party, petitioned (Ex. 7) to the Officer-in-Charge, Shillong Police Station, alleging that holding No. 122 in south-east Mowkher Ward of the Shillong Muni­cipality, then in occupation of the Tip Top Hotel, belonged to him, and that the second party, Durga Prasad Goenka, who was the owner of the adjoin­ing holding to its north-west, was taking forcible possession of a portion of land out of the said hold­ing No, 122, by cutting earth thereform and by re­moving all boundary marks between the two hold­ings, in spite of the first party's protest. He asserted that if the encroachment went on, there was danger of a breach of the peace. The Officer-in-Charge directed a Sub-Inspector to en­quire into the matter under S. 145, Cr. P. C. The Sub-Inspector reported on 28-1-53 that the parties had already settled the matter amicably between themselves. On this report, the matter was dropped. (3) On 19-3-53, the first party put in another application under S. 145, Cr. P. C. in the Court of the Additional District Magistrate, Shillong. He alleged that lie was the owner of holding No. 122, and that the second party who was his father's brother's son, had started encroaching on the land sometime in January, 1953. He had lodged an in­formation at the Shillong Police Station on 22-1-53. After that the second party desisted from acts of encroachment for some time, but again, in the second week of February, 1953, he commenced taking the law into his own hands by cutting earth from the petitioner's compound. He stated that he was waiting for some action by the Police, but as they had not moved in the matter, a second peti­tion in Court became necessary. (4) The learned Additional District Magistrate, •on receiving this petition, passed his order, dated 3.9-3-53, in the following terms : "To O/C, Shillong Police Station, for immediate enquiry and report. In case of emergency, the land in dispute may be attached. Issue order of attach­ment." An attachment order was sent in pursuance of this order to the Officer-in-Charge, Shillong Police Sta­tion. In case of emergency, the land in dispute may be attached. Issue order of attach­ment." An attachment order was sent in pursuance of this order to the Officer-in-Charge, Shillong Police Sta­tion. On 30-3-53, the Officer-in-charge of the Police Station submitted a report to the Additional District Magistrate, Shillong, stating that the land in dispute had been attached in pursuance of the order, dated 19-3-53. He further submitted a pro­ceeding under S. 145, Cr. P. C., finding that there was an apprehension of a breach of the peace. It was also stated that the first party Rames­war Goenka having reported about the encroachment on the land again by the second party, Durga Prasad Goenka, by putting C. I. sheets on the roof, he had visited the locality and had asked the second party to remove the C. I. sheets, which the second party admitted to have fixed through mistake. He request­ed the Additional District Magistrate to depute one Sub Deputy Collector to survey the disputed plot and to fix up the boundaries between the two hold­ings. On receipt of this report, the Additional Dis­trict Magistrate transferred the case to the Senior Extra Assistant Commissioner, Shillong, for disposal. On 30-3-53, the Senior E. A. C. passed an order to the following effect: "Case received on transfer. The land has al­ready been attached under the A. D. M.'s order. Parties will now file written statement regarding possession. Seen Police Report, dated 30-3-53, re­garding violation of die attachment order by the second party. Ask them to show cause why he should not be prosecuted under S. 188, I. P. C. and direct him not to commit further breach of the at­tachment order. Also please request Mr. Roy, S. D. C., to demarcate the land on the basis of the record. Fix 17-4-54." (5) The parties submitted their written state­ments. Five witnesses were examined on behalf of the first party, and four on behalf of the second party. Some talk about compromise proved abortive. The learned Magistrate ultimately found that the first party was in possession of the disputed portion of the holding in question, and declared him entit­led to remain in possession thereof until evicted therefrom in due course of law. He also held that tile first party was entitled to restoration of posses­sion of the disputed land, and issued a direction to that effect. He also held that tile first party was entitled to restoration of posses­sion of the disputed land, and issued a direction to that effect. (6) The learned Sessions Judge has recommen­ded that no proper order directing the drawing up of a proceeding under sec. 145, Cr. P. C. was pas­sed. He expressed the opinion that the learned A. D. M. had not applied his mind to the question as to whether there was a likelihood of a breach of the peace or not, and that he did not purport to draw up a proceeding under sec. 145, Cr. P. C. He did not regard the order, dated 19-3-53, as one initia­ting a formal proceeding under sec. 145, Cr. P. C., and this omission to initiate a formal proceeding was found not curable even on the basis of the sub­sequent attachment Order. He also pointed out that the first party had not attempted to define the exact area which was in dispute between the parties, and, in any case, some encroachment had occurred in January, 1953. Any order about this land could not be legally passed as this part of the encroachment had occurred more than two months before the pro­ceeding was drawn up. (7) The requirement of Sec. 145, clause (1), Cr. P. C. is that a District Magistrate or Sub Divi­sional Magistrate or Magistrate of the first class must be satisfied from a Police report or other in­formation that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his ju­risdiction, and, if so satisfied, he should make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by the Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. Obviously, two things are necessary: there should be a dispute relating to land or water; and it should be likely to cause a breach of the peace. A Magistrate passing an order under S. 145 Cr. P. C. should be satisfied about die existence of such a dispute and should state the grounds of his being so satisfied. Obviously, two things are necessary: there should be a dispute relating to land or water; and it should be likely to cause a breach of the peace. A Magistrate passing an order under S. 145 Cr. P. C. should be satisfied about die existence of such a dispute and should state the grounds of his being so satisfied. The orders which have been passed in this case do not strictly comply with the directions contained in sec. 145, Cr. P. C. The first order passed was on 19-3-53 when the complaint was filed. The learned Magistrate could pass that order on receiving the complaint without obtaining any report from the Police or without making any preli­minary enquiry. He did not even record the statement of the complainant, but even this omission would not make his order illegal. The language of the section leaves wide discretion to the Court. The Magistrate con­cerned may feel satisfied about the existence of a dispute likely to cause a breach of the peace from a Police report or other information. What is neces­sary is that the Magistrate should make an order in writing, giving reason for his satisfaction that a dis­pute about some land or water likely to cause a breach of the peace existed. All that the learned Magistrate did in this case was to ask the Officer-in-Charge to proceed to enquire into the matter and report, and, in case of emergency, to attach the land. An attachment order was sent also. (8) Mr. Lahiri has argued that though he has not stated in express terms that there was a dispute likely to cause a breach of the peace, he was con­vinced of this fact. He reads in his order a neces­sary implication of his belief or satisfaction about the likelihood of a breach of the peace. He points out that it was not merely a case of likelihood of a breach of the peace; the learned Magistrate seemed to be thinking in terms of an emergency and actual­ly authorised attachment of the disputed land by the issue of an order. His belief that there was a likelihood of a breach of the peace would neces­sarily follow from the order. Even if the order is interpreted in that sense, it still would not satisfy the requirements of sec. 145, Cr. His belief that there was a likelihood of a breach of the peace would neces­sarily follow from the order. Even if the order is interpreted in that sense, it still would not satisfy the requirements of sec. 145, Cr. P. C. because we do not discover anything in the order which brings out how the Magistrate was satisfied about the existence of a dispute likely to cause a breach of the peace. Mr. Lahiri's answer is ,that the Magistrate had the complaint before him and also the fact that a previous report had been made to the Police, and if these factors induced the necessary belief, the action of the Magistrate would be legal. He, however, could not say that even this would amount to a strict compliance with the requi­rements of law. The grounds have to be expressly stated, they have not to be gathered from the cir­cumstances of the case. (9) The next order in the case was passed on 30-3-53. The Additional District Magistrate trans­ferred the case to the Court of the Senior Extra As­sistant Commissioner. The order of transfer cannot, by any stretch of imagination, be regarded as an order drawing up proceedings under sec. 145, Cr. P. C. On the same day the Senior Extra Assistant Commissioner passed an order. He directed the par­ties to file written statements. A Police report re­garding violation of the attachment order was con­sidered. Notice was issued on the second party to show cause why he should not be prosecuted and demarcation of the land in dispute was also ordered. Mr. Lahiri has relied on this order also in the alternative for showing that the procedure followed by the learned Magistrate was not illegal or in de­fiance of the provisions of sec. 145, Cr. P. C. Even here the same difficulty exists. He has to rely on the implications of the order. The learned Magis­trate considered the proceeding submitted by the Police on the ground that the dispute was likely to [result in a breach of the peace. He ordered the parties to put in written statements. These written statements under sec. 145, Cr. P. C. may be called for only if the Magistrate feels satisfied about the exis­tence of a dispute likely to cause a breach of peace. Mr. He ordered the parties to put in written statements. These written statements under sec. 145, Cr. P. C. may be called for only if the Magistrate feels satisfied about the exis­tence of a dispute likely to cause a breach of peace. Mr. Lahiri argues that there was satisfaction oil the part of the Magistrate, and written statements were accordingly demanded, There was an attach­ment order and other directions, which clearly showed that there was no doubt in the mind of the Magistrate about the dispute and also of the likelihood of a breach of the peace. These facts are there no doubt, but even so, the order did not, in terms, comply wit] the requirements of S. 145, Cr. P. C. The learned Sessions Judge, therefore, was right in the view that no proper or valid preliminary order directing the drawing up of the proceeding was passed at any stage of the proceedings. (10) The next question is - whether this omis­sion to comply strictly with the requirements of sec. 145, Cr. P. C. is fatal to the proceedings, by itself Section 537, Cr. P. C. provides that subject to the provisions contained in the Act, no finding, sentence or order passed by a Court of competent jurisdic­tion shall be reversed or altered under Chapter XXVII or on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment, or other proceedings before or during trial or in any inquiry or other proceedings under the Code, unless such error, omission, irregularity or misdirection has, in fact, occasioned a failure of justice. It has, therefore, to be seen whether failure of justice has, in fact, occurred by reason of the irregularity complained of Without a finding to that effect, the mere contravention of the provisions of Sec. 145(1), Cr. P. C. would not justify setting aside the order. Even irregularities in a charge may be cured under S. 537, Cr. P. C. if failure of justice in fact, has not occurred. This is an important aspect of the matter. The learned Sessions Judge has not come to the conclusion that there has been any mis­carriage or failure of justice. He has not gone into the facts of the case. P. C. if failure of justice in fact, has not occurred. This is an important aspect of the matter. The learned Sessions Judge has not come to the conclusion that there has been any mis­carriage or failure of justice. He has not gone into the facts of the case. He formed his view from the orders of the learned Magistrate that he had not applied his mind to the question whether a dispute likely to cause a breach of the peace existed or not. The two' orders, however, do indicate that there was, in the view of the Magis­trate, a valid basis for taking action under section 145, Cr. P. C. though he failed to state it explicitly, The irregularity complained of does not affect the jurisdiction, nor has it affected the merits of the case. Some five witnesses were examined on one sic and four on the other. Evidence was led as to the actual possession of a plot which was in dispute. The learned Magistrate has come to a finding on the question of fact, and unless an erroneous finding has been induced on that point by the irregularity complained of, there cannot be any justification for quashing the proceedings. The evidence was not considered or discus­sed by the learned Sessions Judge, and in the absence of any suggestion of a probable failure of justice, the final order cannot be set aside in view of the provisions contained in Sec. 537, Cr. P. C. (11) The learned Judge has also expressed the view that the land in dispute was not defined by the complainant in his complaint petition. This is correct. But later on, in order to comply with the order passed by the learned Magistrate on 19-3-53, the Police Officer found it necessary to attach the land in dispute. The attachment and the Police re­port both show that it was believed that there was danger or likelihood of a breach of the peace. The land was attached in the presence of the parties The land in dispute was thus ascertained; the area was specified; it was attached; the boundaries of the attached area are given in the report of the Police Officer. Therefore, when written statements were put in, there was no indefiniteness about the area that was in dispute. The parties led evidence with res­pect to the land in dispute. Therefore, when written statements were put in, there was no indefiniteness about the area that was in dispute. The parties led evidence with res­pect to the land in dispute. Both claimed possession thereof, and the final order that was passed was with respect to this land. The omission to define the land by boundaries in the complaint petition, there­fore, does not introduce any uncertainty or in­definiteness in the proceeding. (12) The last point which influenced the lear­ned Sessions Judge in making his recommendation, was that the encroachment, at least that which oc­curred in January, 1953, was not within two months of the date of any order, that could be regarded as preliminary. He took the first application made to the Police into consideration. The evidence is that on the report made to the Police, no action was taken. The second application was put in February. The first order was on 19-3-53. The second order was passed on 30-3-53. Whatever order is taken as initiating the proceeding under section 145, Cr. P. C., the bar of limitation or any difficulty under the proviso to Section 145 (4), Cr. P. C., does not arise. The encroachment or dispossession occur­red within two months of the order, dated 30th March, 1953. There was not dispossession before the complaint made to the Additional District Magis­trate, considering that the earlier dispute had been settled amicably between the parties after the first report to the Police. (13) We notice that though the learned Magis­trate of the trial Court committed irregularities in initiating the proceeding, in the absence of any basis for a finding that a failure of justice has oc­curred, we do not find our way to accept the recom­mendation made by the learned Sessions Judge. The reference is accordingly rejected. (14) H. DEKA, J. - I agree with my learned brother. (15) This is a reference where we need not in­terfere because it seems that the trouble started with an attempted dispossession by the second party, and the finding, as such, is to the effect that the second party was the trespasser. The proper remedy being in a Civil Court for final results, we do not feel called upon to interfere unless it is apparent, on the face of the record, that the second party has been seriously prejudiced. That does not appear to! be the case here. The proper remedy being in a Civil Court for final results, we do not feel called upon to interfere unless it is apparent, on the face of the record, that the second party has been seriously prejudiced. That does not appear to! be the case here. On the other .hand, I cannot but notice that the defect in procedure followed, parti­cularly by the Additional District Magistrate and the Magistrates who succeeded, was of a vary se­rious nature to the extent that none of them came to a definite finding that there was a likelihood of a breach of the peace, which is one of the material conditions for drawing up a proceeding under sec. 145, Cr. P. C. (15a) In the facts and circumstances of this case, I do not feel called upon to touch the other points of reference as they have been adquately dealt with by my learned brother. (16) I agree that the reference be rejected. Reference rejected.