Kulwant Singh Tiwana, J. - (1.) FACTS giving rise to this revision are that an application presented by Om Parkash, respondent No. 1, under 107/150, Indian Penal Code, against the petitioners was sent by Sub -Divisional Magistrate, Gurgaon, on 3rd October, 1973, to the police for inquiry and report. The Police reported about the existence of the apprehension of the breach of the peace between the parties because of a dispute between them about the right of a passage over the gitwar On receipt of that report the learned Sub -Divisional Magistrate vide orders dated 4th January, 1974, summoned the petitioners.
(2.) THE petitioners filed the present petition under section 482, Criminal Procedure Code, 1973, for quashing of the order of the Sub -Divisional Magistrate, Gurgaon, summoning the petitioners, on two grounds. The first ground was that the application of Om Parkash to the Sub -Divisional Magistrate was under section 107/150, Indian Penal Code and that he being an Executive Magistrate could not take cognizance of the offence under the Indian Penal Code. Mela Ram Sharma, J. while admitting the petition on 7th February, 1975, disposed of this objection being a clerical mistake. The mistake was deemed to be corrected under the orders of the Court. The second ground taken by the petitioners is that the Sub -Divisional Magistrate had no power to send an application under section 107/150, Criminal Procedure Code to the police for inquiry and report and for that reason the proceedings started by him on the basis of the police report are vitiated. Elaborating his argument in support of the only objection surviving for decision Mr. K.D. Singh, Learned Counsel for the petitioner, cited a decision of this Court in Nachhatar Singh v. The State of Punjab, 1973 C.I.R. 159, wherein it was held - - The question for determination is, whether the provisions of section 202 Criminal Procedure Code, apply to proceedings instituted under section 107, Criminal Procedure Code. A proceeding under section 107, Criminal Procedure Code, cannot be regarded as a complaint and therefore section 202 of the Code under which the Executive Magistrate directed to the Police to hold an enquiry is not applicable. It was urged that the proceedings before the Executive Magistrate against the petitioner require to be quashed on this ground The learned Single Judge deciding Nachhatar Singh's case relied on the decision of the Lahore High Court in Hari Singh v. Jagta, A.I.R. 1921 Lah 694, of come tO a conclusion that the Magistrate has no power to send an application under section 107, Criminal Procedure Code, to the Police for enquiry under section 201, Criminal Procedure Code.
(3.) PROVISIONS , of Chapter XVI, Criminal Procedure Code, 1898, (which was applicable to the case), which contains section 202, do not have any application to Chapter VIII, Criminal Procedure Code (hereinafter called the Code) placed in Part IV of the Code dealing with "Prevention of offences." Both these chapter are independent of each other and section 202 of the Code embraces only complaints. There is a good deal of authority in support of the view that proceedings under section 107 of the Code are not complaints as defined in section 4(1)(h) of the Code.;