KANHAIYALAL Vs. DEVI SINGH

JUDGEMENT

(1.) This case arises out of a report by the learned Sessions Judge Dewas, in an application in revision by the losing party in a proceeding under the Code of Criminal Procedure, the nature of which is to be set out presently. This involves the consideration of the scope of the respective Sections 107 and 145 of the Code and the effect of mixing them up in a single proceeding.

(2.) There was a dispute concerning some agricultural land, the identity of which was admitted by the parties. The applicants in revision were found by the learned First Class Magistrate not to have been in possession originally, but to have forcibly dispossessed the non-applicant within two months of the preliminary order of the learned magistrate. Till then, it was found that the non- applicant in revision was in possession. Accordingly, the magistrate made a final order under Section 145 in favour of the non-applicant directing the applicants to give up possession and not to disturb him, and further bound down under Section 107 Criminal Procedure Code, the members of the applicant's party to keep the peace, and called upon them to execute the appropriate bonds with sureties. In the preliminary order itself, both Sections 145 and 107 Criminal Procedure Code were mentioned and so also were they mentioned in the notice on the applicants' party calling upon them, on the one hand, to produce their documents and bring their evidence on the factum of their possession on the land and simultaneously to show cause why they should not be bound down under Section 107 with such and such sureties for maintaining the peace for a period of one year under Section 107. There were no separate proceedings but a single proceeding under both sections which is unusual enough. Both parties came, filed written-statements, adduced oral evidence; entered into argument and the like, but neither party objected to this mix up. After the final order, the losing party -- that is, the present applicants -- went up in revision to the Sessions Judge and pointed out that it was wrong to have composite proceedings under both the sections and as such, the entire proceeding should be quashed, and the findings of the magistrate about possession under Section 145 and his order under Section 118 should be set aside. The learned Sessions Judge accepted this position and has accordingly made a report recommending that the order should be set aside. Besides this main ground, he has also pointed out that oral evidence should not have been allowed because the parties did not file any affidavits. There is also an indication that on the merits the learned Sessions Judge was not satisfied on the finding in favour of the non-applicants' possession but that relates to facts and cannot, in any event, be gone into in revision.

(3.) It is obvious that the scopes of the two Sections 107 and 145 Criminal Procedure Code, are different and it is not proper for a magistrate to mix them up in the same proceedings. Certainly, there is no legal ban against the magistrate proceeding simultaneously under both the sections against any party or parties, but the occasion would be unusual and, in any event, it would be proper to keep the two proceedings quite separate. The only common element in both the proceedings is that a breach of peace is likely, and it has to be forestalled and prevented by the Magistrate; but even in cases where the breach of peace is likely in course of a dispute regarding immovable property, the analogy stops there. When there is no immovable property involved, it is obvious that Section 145 does not come in, and it would be for the magistrate to consider whether action under Section 107 is indicated. But where there is a dispute concerning immovable property, it is the magistrate's discretion to decide whether he should at the first instance proceed only under Section 145, or he should simultaneously proceed in different proceedings under both the sections, or he should dispense with Section 145 altogether and proceed only under Section 107 Cr. P. C. Broadly speaking, where there is something like a genuine dispute and the magistrate is unable immediately to ascertain which party is in possession, or has been in possession within two months from the date of the preliminary order, he will do well to proceed under Section 145 Criminal Procedure Code. But that does not prevent him from proceeding under Section 107 simultaneously; in fact there may be cases where this would be very necessary, as the existence of a proceeding under Section 145 is not always a guarantee against violent persons beginning to fight about possession of the property. In such event, it would be appropriate for the magistrate to draw proceedings under Section 107 against one or both the parties, take ad interim bonds if necessary which will assure that the peace would be maintained for the time, keep those proceedings pending, and meanwhile get on with the one under Section 145 Criminal Procedure Code. After the decision under Section 145 it will be a comparatively straight matter to decide whether one of the parties to the dispute should at all be bound under Section 107 Cr., P. C. Again, there may be another set of cases where the possession of one of the parties is obvious, there having been very recently a decision of the Court, or a delivery of possession, or a conviction in a criminal case, or, as for that matter, a finding under Section 145 itself. In such circumstances, there is really no uncertainty about possession, one of the parties being in possession, the other would be setting up a presence and trying to take possession by force obviously after breaking the peace. In such a position, there is clearly no sense in reagitating the obvious under Section 145 Criminal Procedure Code. The proper course would be to bind down the party setting up a pretence under Section 107 Cri. P. C. Thus, broadly speaking, it would be at the discretion of the magistrate, who should, with due regard to the circumstances take action under one or the other of the sections or in simultaneous, but different proceedings, take action under both the sections.