Sheo Babu and Others vs State

K.B. Asthana, C.J. and 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 u/s 107/117 of the Code of Criminal Procedure be taken against Sheo Babu and others. This application was filed on 7-1-1974. The Sub-Divisional Magistrate called for a police report which was submitted on 28-1-1.974 to the effect that as both the parties 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 place on account of dispute relating to Abadi land, that is Immovable property, the Magistrate had no jurisdiction to draw up proceedings u/s 107/117 of the Code of Criminal Procedure, if at all, he could have drawn up proceedings u/s 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 u/s 107/117 of the Code of Criminal Procedure even though there was a dispute between the parties relating to Immovable 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 con-lined 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 Immovable 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 Immovable 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 u/s 107. It wilt 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 u/s 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 Immovable property the Magistrate may draw up proceedings u/s 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 Immovable property the Magistrate in no case can proceed u/s 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 had preferred threats to the complainant Doodh Nath to kill him. In a matter of this kind, which resulted in strong feelings of enmity 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 ILR 39 Cal 150 lays down a proper guideline in such cases.

In view of what we have observed we think that the decision of Roy, J. in Autar Singh and Another Vs. State, 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 6 is far nearer to our approach.

The next point which has been raised on merits is that the notice issued to revisionists by the learned Magistrate was bad in law as it did not contain the substance of the information received. We agree with the learned Counsel that it is the requirement of the law that substance of information must be mentioned in the notice. But on merits we think that the notice sent by the learned Magistrate reproduced the substance of the information as it clearly recites that Sheo Babu and others have formed a gang threatening the life and property of Doodh Nath on account of a dispute relating to possession of Abadi land and have been threatening Doodh Nath. There is thus no tenability in the point raised.

The result is that we find no force in this revision and dismiss it.