- (1.) This revision has arisen out of a reference by the Ses. J. of Tonk in a revision before him out of proceedings under Sections 145 and 107, Criminal P.C. When the matter came up before the learned single Judge of this Court, he referred the following three points for decision by a Division Bench:- (1) "Whether a Magistrate was competent to initiate proceedings under Sections 107 & 145 Cr.P.C. simultaneously; (2) In case the Magistrate finds after enquiry under Section 145 Cr.P.C. that the property in dispute was in joint possession of the parties then (a) what should be the nature of the order if one would be passed under Section 145 Cr.P.C. or (b) should the Magistrate proceed to pass an order under Section 146 Cr.P.C., & (3) In case the finding of the Magistrate was under Clause (2) above, & he apprehended a breach of peace between the parties while each attempted to oust the other, was he competent to ask for security to keep the peace under Section 107 Cr.P.C. where (a) the proceedings were initiated under Section 145 & 107 Cr.P.C. & (b) where the proceedings were taken exclusively under Section 145 Cr.P.C.
(2.) A brief reference to the facts of this case may be given at the outset. The case started on two reports of the police of Thana Kili - one under Section 145 & the other under Section 107 - as the dispute between two parties was about certain immovable property. The report under Section 107 was against both parties. The Magistrate who tried the case instead of taking separate proceedings - & there should have been three proceedings, namely, one under Section 145 & another under Section 107 against one party & the third under Section 107 against the second party - mixed up everything in one proceeding. It appears that the learned Magistrate gave notice to the parties under Section 145 & also asked them to show cause why security should not be taken from them. But it seems that the notice under Section 112. Criminal P.C. was not read over to the parties when they appeared in court. The case related to two Baras. So far as one Bara is concerned, the Magistrate found in favour of one party & passed an order under Section 145. So far as the second Bara is concerned, the Magistrate found that both parties were jointly in possession & directed them to get their rights determined by a civil Court within three months. He also held that there was a likelihood of a breach of the peace &, therefore, ordered the parties to execute bonds to keep the peace for a period of three months.
(3.) We now come immediately to the three questions that have been put to us for reply. The first question is whether a Magistrate is competent to initiate proceedings under Sections 107 & 145, Cr.P.C. simultaneously. Whatever may have been the uncertainty of the law in this connection, the matter is set at rest by the introduction of Sub-section (10) in Section 145 by the legislature by the Criminal P.C. (Amendment) Act 1923 (XVIII (18) of i923). This Sub-section reads as follows: "Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107." This was in accordance with the view taken by a five Judges' Bench of the Calcutta High Court in 'Emperor v. Abbas', 39 Cal. 150, where it Was held: "There is no conflict between Sections 107 & 145, Criminal P.C. & the fact that there is a dispute concerning land, likely to cause a breach of the peace, does not deprive a Magistrate of jurisdiction under Section 107, Criminal P.C. where he is informed that any person is likely to commit a breach of the peace or disturb public tranquillity, or to do. any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity." It is, therefore, within the discretion of a Magistrate to proceed simultaneously or not under Sections 145 & 107, Criminal P.C. in cases in which there is a dispute between two parties about immovable property. As pointed out in the Calcutta case, referred to above, it will depend upon the circumstances of each case whether action should be taken simultaneously or not. We should, however, make it clear that even where action is taken simultaneously, there should be two separate proceedings - one under Section 145 & the other under Section 107 Cr.P.C. & the procedure adopted by the Magistrate in this case of having one proceeding was not right. Our answer, therefore, to this question is that a Magistrate is competent to initiate proceedings under Sections 107 & 145, Cr.P.C. simultaneously in suitable cases.;