RAM CHARAN SINGH Vs. BASUDEO DUSADH

JUDGEMENT

(1.) This is a reference made by the Additional District Magistrate of Gaya against an order of the learned Sub-divisional Magistrate of Nawadah dated 1 July 1948 by which the learned Sub-divisional Magistrate has dropped a proceeding under Section 145, Criminal P.C. and instituted a proceeding under Section 107, Criminal P.C. in the following circumstances. It appears that on 15 July 1947, the Sub- Inspector of Rajauli police-station submitted a report about an apprehension of a breach of the peace regarding a large area of land between two parties. This report was considered by the learned Sub-divisional Magistrate and on 2lst July 1947, he drew up a proceeding under Section 107, Criminal P.C., against the members of the second party, who have appeared before me in Support of the reference. This proceeding under Section 107, Criminal P.C. continued for some months without any evidence being led, and on 29 November 1947, the learned Sub-divisional Magistrate considered the report of one Mr. A. N. Singh, Honorary Magistrate, and another report of the Sub-Inspector of Police, Rajauli, and drew up a proceeding under Section 145, Criminal P.C., in respect of the same lands and between the same parties. The result of this order dated 29 November 1947, was that there were two proceedings pending simultaneously in respect of the same lands and between the same parties, be under Section 107, Criminal P.C. and the other under Section 145, Criminal P.C. I must mention, however, that the proceeding under Section 107, Criminal P.C. was against the members of the second party only and not against the members of the first party. Naturally, the members of the second party moved the learned Sub-divisional Magistrate that the proceeding under Section 107, Criminal P.C. against them should to dropped inasmuch as there was a proceeding under Section 145, Criminal P.C. in respect of the same dispute. The learned Sub-divisional Magistrate did not accede to this request, but passed an order on 10 March 1948, to the effect that the proceeding under Section 107, Criminal P.C., should be stayed till the decision of the dispute under Section 145. In the meantime an attempt was made by the members of the second party to get the dispute refered to a Board of Arbitration under the Bihar Bakasht Disputes Settlement Act, 1947. In connection with that attempt a Magistrate of the name of Mr. Lakhaiyar was sent for enquiry by the District Magistrate of Gaya. This gentleman found that Srimati Parvati Devi and Sant Saran Lai, the latter of whom was the landlord and the former his wife, were in possession of the land. Then on 1 July 1948, the learned Sub-divisional Magistrate passed the order against which the -present reference has been made. By this order the learned Sub-divisional Magistrate dropped the proceeding under Section 145, Criminal P.C., or rather converted it into a proceeding under Section 107, Criminal P.C., against the second party, Then, there was an order that this proceeding under Section 107, Criminal P.C., should be amalgamated with the old proceeding under Section 107, Criminal P.C.

(2.) The learned Additional District Magistrate has recommended that the order of the learned Sub-divisional Magistrate dropping the proceeding under Section 145, Criminal P.C., and instituting a proceeding under Section 107, Criminal P.C., against the members of the second party should be set aside. I have been addressed by learned Counsel for the parties on the question if there can be simultaneous proceedings under 8.145 and under Sec. 107, Criminal P.C., between the same parties and about the same dispute. Reference has been made to a decision of the Calcutta High Court in Nasiruddin Sircar V/s. Gofuruddin Mohamed A.I.R. 1917 Cal. 226. That, however, was a case in which orders were passed under 8. 107, Criminal P.C., against both parties: then, there was a proceeding under Section 145 and the order in that proceeding was that neither party was in possession and the subject of dispute was attached under Section 146, Criminal P.C. Without going into the abstract question if there can be simultaneous proceedings under Secs.145 and 107, Criminal P.C., it seems clear to me that in the particular case before me it was improper to institute a proceeding under Section 107 against one of the parties when a proceeding under Section 145 was pending between the parties. It was still more improper, and I think, illegal on the part of the learned Sub-divisional Magistrate, to convert a proceeding under Section 145 into a proceeding under Section 107, Criminal P.C. The result of these orders is that the learned Sub-divisional Magistrate has already made up his mind that the second party were not in possession and were interfering with the possession of the first party by means of wrongful acts; but he had no evidence before him for coming to such a conclusion and the report of Mr. Lakhaiyar was not, strictly speaking, evidence on which the learned Sub divisional Magistrate could come to a concluded finding on the question of possession. This Court has, on more than one occasion, expressed the view that when there is a dispute concerning land, which is likely to cause an apprehension of a breach of the peace, the proper procedure is to apply Section 145, Criminal P.C., and decide the question of possession once for all. The learned Sub-divisional Magistrate rightly drew up a proceeding under Section 145, but converted it to a proceeding under Section 107, Criminal P.C., a process which I think, is unknown to law. He purported to do this on the report of Mr. Lakhaiyar, which, strictly speaking, was not evidence in the case. It was open to the learned Sub-divisional Magistrate to come to a finding on the question of possession after taking evidence in the proceeding under Section 145, Criminal P.C. Without doing that, he resorted to a proceeding under Section 107, Criminal P.C., when there were no fresh materials before him. In my opinion, the order of the learned Sub-divisional Magistrate was improper and not warranted by law.

(3.) I would, therefore, accept the reference and set aside the order of the learned Sub-divisional Magistrate instituting a proceeding under Section 107, Criminal P.C., against the second party. That proceeding will now be quashed, but it would be open to the learned Sub-divisional Magistrate, if he is again satisfied that an apprehension of a breach of the peace exists, to institute an appropriate proceeding under Section 145, Criminal P. C.