Nawal Kishore, C. J. - (1.) THIS is a revision by Thakur Sher Singh of Balunda attacking the order of the learned District Magistrate, Pali, dated the 3rd of October, 1950, by which the order of attachment passed by the learned sub-Divisional Magistrates Jaitaran, was cancelled.
(2.) THE order of the learned District Magistrate is very sketchy, and is so completely bare of details that it cannot be said to be a judicial order. In the circumstance, it is necessary hat a few facts may be set out in order to show how the question calling for determination in this revision emerges. Gorawar is a Patta village of Thikana Balunda, and the well in dispute is situate in this village, and was in the possession of the Thikana. On the 11th of June, 1950 when the Thikana employees went to cultivate the Jav attached to the well, they were obstructed by the 18 non-petitioners proceeded against in the Court below, and the latter threatened to give these employees a thrashing if they insisted upon cultivating the land. THE result was that on the 16th of June, 1950 the Kamdar, Thikana Balunda, applied under section 145 of the Code of Criminal Procedure to the District Magistrate Pali, requesting him to take action against the persons mentioned above, as there existed a dispute concerning the land, which was likely to cause a breach of the peace. This application was made to the District Magistrate, Pali as an order was required immediately, but could not be obtained from the Court of the sub-Divisional Magistrate, Jaitaran, as he happened to be away on leave. THE learned District Magistrate, Pali, instead of keeping the application in his Court or sending it to the Court of the sub-Divisional Magistrate, forwarded it to the sub-Inspector, Kalu Police Station, and directed him to make inquiries and submit the report to the sub-Divisional Magistrate, Jaitaran for necessary action being taken against the non-petitioners. To say the least this procedure was wholly unjustified. It was imperative that the application filed by the Kamdar, Thikana Balunda, should have remained pending either in the Court of the District Magistrate, Pali, or in that of the sub-Divisional Magistrate, Jaitaran and the report could have been submitted to the court of the sub-Divisional Magistrate, Jaitaran, only if some application was pending in his Court. Be that as it may, no separate report was sent by the sub-Inspector, Kalu Police Station, and instead, he filed a fresh application in the Court of the sub-Divisional Magistrate, Jaitaran,on the 17th of July, 1950, and attached with it the application which had been filed on behalf of the Thikana. THE application by the sub-Inspector Kala, purported to be under section 107 and 145 of the Code of Criminal Procedure, and it was alleged therein that the non-petitioners were obstructing the Thikana, which was in possession of the well, and that accordingly, since there was an imminent danger of the breach of the peace, the Court was requested to take action both under section 107 and 145 of the Code of Criminal Procedure. On the 18th of July, 1950, the sub-Divisional Magistrate, Jaitaran, registered the case in his Court under section 107 of the Code of Criminal Procedure, and took action against the non-petitioners in as much as he called upon them to show cause. Some evidence was also recorded by him, but shortly after he was transferred. He was succeeded by another Magistrate, who, on scrutinizing the application filed by the Kamdar, Thikana Balunda, came to the conclusion that the facts contained therein warranted action under section 145 as well. He accordingly drew up a preliminary order under that section, and also attached the well in dispute. A revision was taken to the Court of the learned District Magistrate, Pali, against this order, and it was represented to him that it was not open to the sub-Divisional Magistrate to convert the proceedings under section 107 of the Code of Criminal Procedure into those under section 145 of the Code. THE learned District Magistrate did not give a clear finding on the point, but held that proceedings under section 145 of the Code could not be taken without a fresh complaint, and accordingly cancelled the order of attachment, without hearing the Kamdar, Thikana Balunda. It is urged on behalf of the petitioner, in the first instance, that it was not open to the learned District Magistrate to take a final decision, as under section 438 of the Code of Criminal Procedure he * could only make a report to the High Court for necessary orders being passed. This contention is well-founded. A perusal of the plain provisions of section 438 of the Code would show that a District Magistrate, on examining the record of any proceeding under section 435, is only authorised to report for the orders of the High Court the result of such examination, and it is indeed not open to him, after examining the record, as stated above, to set aside the order of the Court below, and thus finally dispose of the revision. This is the first mistake, and a serious one, committed by the learned District Magistrate. Next it is urged that the application filed by the Kamdar, Thikana, Balunda, was presented in a Court of law, and accordingly it should have been retained there and not forwarded to the Police. This application, as stated above, was filed in the Court of the District Magistrate, Pali. On the allegations in it, it indeed called for an enquiry and report regarding an apprehension of a breach of the peace. It was open to the learned District Magistrate to retain this application in his Court, and direct the Police to make an enquiry and submit the report to his Court. If, however, he did not wish to do so, it was equally open to him to forward the application to the Court of the sub-Divisional Magistrate, Jaitaran, who then could have called for an enquiry and a report to his Court. The sub-Inspector, Kalu Police Station, filed a fresh application in the Court of the sub-Divisional Magistrate, Jaitaran, and attached with this application the application filed by the Kamdar, Thikana Balunda. A fresh application was wholly unnecessary, and all that was called for from the Police was a report. Possibly this action on the part of the Police may be justified on the ground that after an enquiry had been conducted, it was considered necessary that action be taken under section 107. The learned sub-Divisional Magistrate, Jaitaran, passed the order of attachment on the Police report incorporated in the application filed by the sub-Inspector, Kalu Police Station but it was cancelled by the learned District Magistrate on the ground that proceed-ings under section 145 of the Code of Criminal Procedure could not be taken without a fresh complaint. The learned District Magistrate, however, ignored the fact that the application filed by the Kamdar, Thikana Balunda, was expressly under section 145 of the Code, and that the application filed by the sub-Inspector, Kalu was also under that section, although a request was made that action may also be taken under section 107 of the Code. Accordingly, the view taken by the learned District Magistrate that a fresh complaint under section 145 was necessary is not justified. The learned counsel for the respondents, however, urges that inasmuch as proceedings had been started under section 107 of the Code, it should be inferred that the sub-Divisional Magistrate had decided not to take proceedings under section 145, and that if his successor made up his mind to do so, he should have called for a fresh complaint and fresh report. I am, however not prepared to agree with this contention. No doubt, to begin with proceedings under section 107 were taken, but no order was passed that a case for proceedings under section 145 being taken had not been made out. When the sub-Divisional Magistrate, who took action under that section, took charge, he scrutinized the application, and found that a case for attachment of the well in dispute had been made out both on the application and the report of the Police. If the learned District Magistrate had looked at the case from this aspect, and carefully studied, not only the application filed by the sub-Inspector, Kalu Police Station, but also the application by the Kamdar, Thikana Balunda, which was also pending in his Court, he would not have come to a different conclusion, inasmuch as there is sufficient material on the record to support the order of attachment passed by the learned sub-Divisional Magistrate, Jaitaran. The order of cancellation passed by the learned District Magistrate, Pali is unjustified, and cannot be held to stand. I accordingly accept this revision, set aside the order passed by the learned District Magistrate, Pali, and restore that of the sub-Divisional Magistrate, Pali and restore that of the sub-Divisional Magistrate, Jaitaran. A copy of this judgment shall be sent to the District Magistrate, Pali, with a direction that he will be more careful in passing judicial orders in future. .;