- (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. 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 Judges 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 here 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 same 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 provisions of Section 145 of the Code of Criminal Procedure are confined to a likely apprehension of breach of peace in regard to possession of immoveable 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 immoveable 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 of 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 immoveable property the Magistrate may draw up proceedings under Section 107/117 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 immoveable 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 shows he was satisfied that Sheo Babu bad preferred threats to the complainant Doodh Nath to kill him. In a matter of this kind, which resulted in strong 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. L. R. 39 Calcutta 150 lays down a proper guideline in such cases.
(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. In Chandrika Krishna Tripathi v. Gabbu, 1971 Allahabad Criminal Reports 109 the view expressed by Parekh J. in no way militates against the view which we have taken. His view in Satya Prakash v. State, 1972 AWR (Journal Section) 6 is far nearer to our approach.;