Dave, J. - (1.) THIS case comes on a reference from the Additional Sessions Judge, Jhunjhunu dated the 6th September, 1951.
(2.) THE facts giving rise to it are that two persons Khambaram and Rituram filed an application against 19 persons on 5. 7. 50 in the court of S. D. M. Jhunjhunu for proceedings under sec. 107 Criminal Procedure Code. That case was transferred by the D. M. Jhunjhunu to the court of S. D. M. , Khetri where it was put up on 17. 3. 51 for the first time. On the 20th November, 1950 the applicants filed in the court of the Sub-Divisional Magistrate, Khetri another application under secs. 107 and 145 Criminal Procedure Code. In both the applications, it was alleged that the field called Doli Shyamji Jasoopurwali measuring 101 bighas situated in village Dodhat, District Jhunjhunu was given to them for cultivation by its owner Chetan Dass, that they were actually cultivating it, but since they anticipated a breach of peace by the opposite parties it was prayed that they should be bound down for keeping peace. THE Sub-Divisional Magistrate, Khetri examined the applicants and passed an order on 25th November, 1950 purporting to take proceedings both under secs. 145 and 107 Criminal Procedure Code. On the 31st July, 1951, he passed an order directing the opposite parties to furnish bonds with surety to the extent of Rs. 500/- and keep peace for six months and at the same time it was ordered that the possession of the disputed land which was meanwhile kept in attachment by the court, be given to the applicants. The learned Additional Sessions Judge has reported that the proceedings taken by the Magistrate in this case were illegal, that he has not cared to follow the procedure laid down in Chapter VIII of the Criminal Procedure Code and, therefore, the Magistrate's order dated the 31st July, 1951 should be quashed. The learned Government Advocate supports the reference. From the perusal of the record of the court of the Sub-Divisional Magistrate, Khetri, it appears that he has proceeded to pass the order dated the 31st July, 1951 without following the procedure laid down by the Criminal Procedure Code. Although a Magistrate is competent to take simultaneous proceedings under both the secs. , 107 and 145 of the Criminal Procedure Code, in certain cases, yet he cannot mix up both of them to the prejudice of the opposite party. The Criminal Procedure Code has prescribed different procedures for proceeding under both the sections and it is not proper for the court to chalk out and follow a third procedure of its own accord. This view is supported by Nahar Singh vs. The State (1) (A. I. R. 1951 Rajasthan 156. ). In the present case, it appears that the Magistrate did not serve upon the opposite parties a copy of the order under sec. 112 Criminal Procedure Code as required by sec. 115 thereof. Similarly a copy of the preliminary order passed by that court under sub-sec. 1 of sec. 145 Criminal Procedure Code was not served on the opposite parties as required by sub-sec. 3. The only process served upon them were summonses for their attendance in the court. Moreover, while passing a final order on the 31st July, 1951 the Magistrate did not give a clear finding as to which of the parties was in possession of the disputed land at the date of the preliminary order or whether any of them was dispossessed of it within two months preceding the date of the said order. It is obvious that the opposite parties have been seriously prejudiced on account of failure on the part of the Magistrate to follow the correct procedure. Under the circumstances, the order of the Sub-Divisional Magistrate, Khetri, dated the 31st July, 1951 cannot be maintained. The reference is accepted, the order of the Sub-Divisional Magistrate dated the 31st July 1951 is set aside. Since the Magistrate has not given any decision as to which of the parties was in possession of the disputed land on the date of the preliminary order passed by the Magistrate, the file be sent back to the trial court with directions to proceed in the matter according to law. The present proceedings will henceforth be taken only under sec. 145 of the Code of Criminal Procedure. .;