SHEO BABU Vs. STATE

JUDGEMENT

(1.) K. B. Asthana, J.

(2.) (for self and for Satish Chandra, J.) :-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 well 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 107/117 of the Code of Criminal Procedure be taken against Sheo Babu and others. This application was filed on 7-4-1974. The Sub-Divisional Magistrate called for a police report which was submitted on 28-1-1974 to the effect that as both the parlies wanted to take possession of the Abadi land there was apprehension of breach of peace. The learned Magistrate on 18-2-1974 passed an order having recorded his satisfaction that Sheo Babu and others were threatening the life of the complainant Doodh Nath on account of dispute regarding possession of Abadi land and called upon Sheo Babu and others that they should appear before the Court on 30-3-1974 and show cause why a security for Rs. 1,000/- 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 immoveable property, the Magistrate had no jurisdiction to draw up proceedings under Section 107/117 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 immoveable property. The revision was dismissed. Being aggrieved, Sheo Babu and others filed a revision in this Court.

(3.) IN view of what we have observed, we think that the decision of Roy, J. in Autar Singh v. State, AIR 1954 Alld. 461 and of Chief Justice Oak in Maya v. State, 1971 AWR 25 (Journal Section) and the judgments rendered by Seth, J. in Abdul Ajij v. State, 1971 AWR 817 and in Asharfi Lal v. State, 1971 AWR 764 are to be preferred as they are in consonance with the view expressed by the Full Bench of the Calcutta High Court (supra). We are not inclined to agree with the view taken by S. D. Singh, J. in Jafar Husain v. State, .1969 AWR 199. The learned Judge, with great respect to him, has missed from consideration the import of sub-Section (10) of Section 145 of the Code of Criminal Procedure.