D F CHINNAPPA Vs. PUJARI SHIVANNA

JUDGEMENT

(1.) The petitioner before this Court is the first party in the proceeding taken under S.145 Cr.P.C. before the Sub-Divisional Magistrate, Tumkur. Respondents 1 and 2 belong to the second party in the said proceedings. The Sub-Inspector of Police, Gubbi, on 30-12-1969 filed an F.I.R. and sent a report that he apprehended breach of peace in respect of four acres of land in S.No.130 of Gangasandra village. The learned Magistrate thereafter passed a preliminary order on 5-1-1970 and after holding an inquiry he passed the final order dated 8-7-70. This order passed by the learned Magistrate is challenged in this revision petition.

(2.) In the said final order, the learned Magistrate held that both the parties 1 and 2 were not in possession of the disputed land, but the Government was in possession of this land. He directed that the proceedings under S.145 Cr.P.C. be dropped and the Tahsildar, who was directed to take possession of the disputed land was to continue as receiver. After passing the said order, the learned Magistrate further held that there was likelihood of the breach of peace and the proceedings should be converted into one under S.107 Cr.P.C. and the parties should be directed to show cause as to why they should not be required to execute a bond with sureties for keeping peace for one year. This order passed by the learned Magistrate is challenged in this revision petition.

(3.) Sri S. Vijaya Shankar, learned counsel appearing on behalf of the petitioner (1st party) has contended that the learned Magistrate has no power to convert the proceedings under S.145 Cr.P.C. to one under S.107 Cr.P.C. He argues that the order of the learned Magistrate dropping the proceedings on the ground that both the parties 1 and 2 are not in possession of the land and continuing the Tahsildar as receiver, is illegal. He contends that in a situation like that, the learned Magistrate should have proceeded under S.146(1) Cr.P.C. The said section states that if the Magistrate is of the opinion that none of the parties was in possession of the disputed land, he should draw up a statement of facts of the case and forward the record of the proceedings to a Civil Court of competent jurisdiction to decide the question whether any, and which of the parties was in possession of the subject matter of the dispute on the date of the order as explained in sub-sec. (4) of S.145 Cr.P.C. It is also contended that S.107 Cr.P.C. proceedings for keeping the peace can be taken only if there is definite information before the Magistrate that any person is likely to commit breach of the peace or disturb public tranquillity. It is also contended that before asking the parties to show cause why they should not execute bond under S.107 Cr.P.C. the Magistrate is bound to pass an order under S.112 Cr.P.C. setting forth the substance of the information received. It is the duty of the Magistrate in the order passed under S.112 Cr.P.C. to set out the definite information and particulars which make him think that the parties are likely to commit breach of the peace. It is pointed out that in the instant case, the learned Magistrate has not passed any such order under S.112 Cr.P.C. and as such, he has no jurisdiction to take proceedings or pass an order under S.107 Cr.P.C. against the parties.