SHEO BABU Vs. UNION OF INDIA

JUDGEMENT

(1.) DOODH Nath and five others moved an application against Sheo Babu and others, revisionists before us, on the allegation that there was enmity between the parties on account of a dispute relating to possession of Abadi land and a wall and that Sheo Babu and others have formed a group in order to cause bodily harm and injury. It was prayed that proceedings under Section 107 j 117 of the Code of Criminal Procedure be taken against Sheo Babu and others. This application was filed on January 7, 1974. The Sub-Divisional Magistrate called for a police report which was submitted on January 28, 1974 to the effect that as both the parties wanted to take possession of the Abadi land there was apprehension of breach of peace. The learned Magistrate on March 18, 1974 passed an order having recorded his satisfaction that Sheo Babu and others were threatening the life of the complainant Doodh Nath on account t of dispute regarding possession of Abadi land and called upon Sheo Babu and other that they should appear before the Court on September 30, 1974 and show cause why a security for Rs. 1,000.00 with two sureties of the same amount be not executed by each of them to keep peace for a period of one year. Against this order of the learned Magistrate Sheo Babu and others filed a revision before the learned Sessions Judge. It was urged in support of the revision before the learned Sessions Judge that the learned Magistrate having found on the police report that there was likelihood of the apprehension of breach of peace on account of dispute relating to Abadi land, that is immovable property, the Magistrate had no jurisdiction to draw up proceedings under Section 1071117 of the Code of Criminal Procedure, if at all, he could have drawn up proceedings under Section 145 of the Code of Criminal Procedure only. The learned Judge repelled this objection holding that the Magistrate in the circumstances of the case, was fully empowered to proceed under Section 107/117 of the Code of Criminal Procedure even though there was a dispute between the parties relating to immovable property. The revision was dismissed. Being aggrieved, Sheo Babu and others filed. a revision in this Court.

(2.) A learned single Judge of the Court, before whom the revision came up for hearing, finding some conflict of views between the various learned Single Judge of this court made a reference to the Division Bench. That is how the matter is before us. Before we refer to some of the decisions rendered by the Single Judges were we think it proper to make certain observations of our own. We do not think that there is any distinct division of power exercised by the Magistrate for preventing breach of peace, disturbance of public tranquility or commission of wrongful acts. The provisions of Section 107/117 of the Code of Criminal Procedure and of Section 145 of the Code of Criminal Procedure are directed to achieve the sum end. While Section 107 of the Code of Criminal Procedure is not confined to a likely apprehension of breach of peace, commission of wrongful acts or disturbance of public tranquility to a particular occasion or situation as it is general in terms, the provisos of Section 145 of the Code of Criminal Procedure are confined to a likely apprehension of breach of peace in regard to possession of immovable property. On a reading of these two provisions it cannot be said that any likely apprehension of breach of peace public tranquility or commission of wrongful act caused by a dispute between the parties over some immovable property is necessarily excluded from Section 107/117 of the Code of Criminal Procedure. In fact sub-section (10) of Section 145 of the Code of Criminal Procedure itself points out that nothing in that section shall be deemed in derogation of the powers of the Magistrate to proceed under Section 107. It will depend on the particular facts of each case and the peculiar situation where the Magistrate could on the information received by him, take recourse to proceedings under Section 107/117 of the Code cf Criminal Procedure or to Section 145 of the Code of Criminal Procedure. There may be cases in which the Magistrate may take recourse to the provisions of both the sections. In a case where he is satisfied that there is threat to the life of a person from another who is interested in the taking possession of some immovable property the Magistrate may draw up proceedings under Section 1071 117 of the Code of Criminal Procedure and may also find it expedient to attach the property to avoid further dispute as to possession or to avoid the consequences of breach of peace. It cannot, therefore, be laid down as a matter of law, as is being attempted by the learned counsel for the revisionists before us, that when on the facts of a case the breach of peace is apprehended on account of disputed possession over immovable property the Magistrate in no case can proceed under Section 107/117 of the Code of Criminal Procedure. In the instant case as the order of the learned Magistrate shov/s he was satisfied that Sheo Babu had preferred threats to the complainant Doodh Nath to kill him. In a matter of this kind, which resulted in Mrong feelings of enemity relating to Abadi land and a well belonging to Doodh Nath, it was to prevent a wrongful act that the Magistrate issued notice to Sheo Babu and others to show cause. It cannot be said on the facts of the instant case that the Magistrate had no such 'power under law. We think that the Full Bench Decision of the Calcutta High Court in Emperor v. Abbas I.B.R. 39 Cal. 150 lays down a pdoper guide line in such cases.

(3.) THE next point which has been raised on merits is that the notice issued to revisionists by the learned Magistrate was bad in law as it did not contain the substance of the information received. We agree with the learned counsel that it is the requirement of the law that substance of information must be mentioned in the notice. But on merits we think that the notice sent by the learned Magistrate reproduced the substance of the information as it clearly recites that Sheo Babu and others have formed a gang threatening the life and property of Doodh Nath on account of a dispute relating to possession of Abadi land and have been threatening Doodh Nath. There is thus no tenability in the point raised. The result is that we find no force in this revision and dismissit.