T.N.R. Tirumalpad, J.C.
1. This reference has to be accepted.
2. One Ningthoujam Magha Singh filed a petition before the S.D.M., i.e. and Th. on 5.5.1962, stating that he has been in possession of 3 sangams and one loushel of land covered by patta No. 129/234-K.h. Pana, Thoubal Tahsil for about 26 years, that the petitioners heroin, who are father and sons forcibly entered the land on 1.5.1962 with their cattle and over-ploughed the land and that this dispute was likely to cause a breach of the peace. We therefore prayed for action under Section 145, Cr.P.C. This complaint was sent for report to the Police by the Magistrate. The Police reported to the Magistrate on 12.6.1902, saying that that the petitioners were found to have entered the land forcibly on 1.5.1962 and cultivated the same, that they continued in possession until then and further that when the complainant asked them not to enter the land, the petitioners threatened him by holding dangerous weapons and that if the complainant's party came face to face with the petitioners' party, there was likelihood of breach of the peace.
The report further said that the Police Officer arrested the petitioners under Section 151, Cri.P.C. to prevent the occurrence of a breach of the peace and it was prayed that proceeding under Section 107, Cri.P.C. may be drawn up against the petitioners and they may not be released unless they executed an interim bond for Rs. 500/- with sureties as provided under Section 117(3), Cri.P.C. The petitioners were accordingly produced under arrest before the Magistrate on 13.6.1962. The Magistrate thereupon passed the order, which is now complained against stating that the accused had been produced under arrest, that he had seen the Police-report, that ball was moved on behalf of the accuse and that they may go on bail on executing an interim bond for Rs. 500/- with one surety for as like sum to keep the peace during the pendency of the trial. Thereafter, he adjourned the case to 15.6.1962 for drawing up a preliminary order under Section 107, Cr.P.C. On 15.6.1962, he proceeded to pass the preliminary order.
3. Mow the objection raised by the petitioners, is that the Police should not have arrested then, for a proceeding under Section 107, Cri.P.C. and further that without drawing up even a preliminary order under Section 107, Cri.P.C. the Magistrate should not have directed the petitioners to execute an interim bond under Section 117(3), Cri.P.C. The learned Sessions Judge has made the reference as he was satisfied that the order of the Magistrate dated 13.6.1962 was illegal. The learned Assistant Government Advocate who appeared before the Sessions Judge did not support the Magistrate's order. Nor did he attempt to do so before this Court.
4. The entire procedure in this case by the Police as well as by the Magistrate has been illegal and would amount to an abuse of the process of Court. The complainant prayed for action under Section 145, Cri.P.C. on the ground that the dispute between the petitioners and the complainant in respect of a certain land was likely to cause a breach of the peace. The Magistrate evidently was not satisfied from the complaint that he should start a proceeding under Section 145, Cri.P.C. and hence sent it for a Police report on 8.5.1962. The Police did not make any enquiry until 12.6.1962, that is, for more than a month. When they made the enquiry on 12.6.1962, they found the petitioners to be in possession of the land from 1.5.1962. During this period of more than one month, there was no (breach of the peace. Still the Police Officer stated in the report that he found that the petitioners hart forcibly entered on the land on 1.5.1962 and remained there till 12.6.1962 and that the petitioners threatened the complainant by holding dangerous; weapons.
There is no doubt that the Police Officer cannot have seen either the forcible entry by the petitioners or the threatening with dangerous weapons. In, that case he would have seized the dangerous weapons used by the petitioners. There is no doubt that the Police Officer was simply stating in the report what the complainant's party had told him. He did not appear to have questioned the petitioners, as his report did not show anything to that effect. Thus, It is clear that the Police Officer was taking sides in the matter and attempting to help the complainant by accepting the complainant's version. Such conduct on the part of the Police Officer clearly shows his mala fides.
5. The conduct of this Police Officer in proceeding to arrest the petitioners under Section 152, Cri.P.C. on the plea that mere was every chance of a serious breach of the peace again showed his mala fides and his partisan spirit. The Police officer had no power to arrest under Section 151 on such a plea. He could arrest under the said Section without warrant only if he knew of a design to commit any cognizable offence and that to if it appeared to him that tile commission of the offence cannot be otherwise prevented. The Police Officer has not stated in his report that he knew of such a design to commit a cognizable offence or that to prevent the commission he had to arrest. It was clearly an abuse of his power to have arrested the petitioners. His report showed that a breach of the peace was likely if the petitioners' party came lace to face with the complainant's party. In other words, a breach of the peace would ensue only if the complainant's party attempted to enter the land which was admittedly in the possession of the petitioners at least from 1.5.1962 to 12.6.1962.
6. Thus, on 12.6.1962, it was highly wrong on the part of the Police Officer to have arrested the petitioners who were in peaceful enjoyment of the land. The prayer of the police officer in his report to start proceedings under Section 107, Cri.P.C. against the petitioners appeared to tie again mala fide under the circumstances. Again, there is no power for the Police to arrest persons without warrant for starting proceedings against them under Section 107, Cri.P.C. Section 107(3) shows that it is only a Magistrate who is not empowered to proceed under Section 107(1), Cri.P.C. who can issue a warrant for arrest of a person and that to if he finds that a breach of the peace or disturbance cannot be prevented otherwise than by detaining any person In custody and Sub-section (4) shows that a Magistrate before whom a person is sent under Sub-section (3) may in his discretion detain such person in custody pending further action by himself under Chapter 8, Cri.P.C.
7. Thus, it is clear that in a case like the present where the Magistrate had sent the complaint to the Police for enquiry and report and the Police delayed the enquiry and report by more than a month, during which period, there was no breach of the peace or apprehension, the Police Officer abused his position in arresting without warrant from the Magistrate and hence the arrest of the petitioners was illegal. The conduct of this Police Officer in this proceeding deserves further scrutiny toy his superior Officers.
8. When the petitioners were thus brought under arrest before the Magistrate on 13.6.1962, his duty was immediately to order their release as the arrest was clearly illegal, instead of doing so, the Magistrate directed them to execute an interim bond for Rs. 500/- with one surety to keep the peace during the pendency of the trial and this was done even without starting any proceeding under Section 107, Cri.P.C. against them. This procedure was again illegal. The Magistrate in his explanation has attempted to show that his order for interim bond was made when the petitioners applied for ball and hence it may be treated as granting bail to the petitioners instead of as an order under Section 117(3), Cri.P.C. This is a meaningless explanation, it was an interim bond which was taken and the purpose of the bond was not for appearance in court, but to keep the peace during the pendency of the trial. Thus, the explanation of the Magistrate to make out that he granted bail to the petitioners cannot be accepted, secondly, when the arrest itself was illegal, the (Magistrate cannot order the accused persons to give ball, but should have released them straightaway. Hence, it is clear that the order of the Magistrate dated 13.6.1962 was illegal and hence it has to be set aside and it is accordingly set aside.
9. I would go further in this case and say that the starting of the proceeding on 15.6.1962 under Section 107, Cri.P.C. was itself wrong on the part of the Magistrate, the complainant did not request for action against the petitioners under Section 107, Cri.P.C., but only under Section 145, Cri.P.C. stating that there was a dispute about a certain land which was likely to create a breach of the peace. No doubt, the Police sent up a belated report more than a month later saying that action should be taken against the petitioners under Section 107, Cri.P.C. There is no doubt that the Magistrate has jurisdiction under such circumstances to proceed under Section 107, Cri.P.C. But before doing so, he must be satisfied that there is sufficient ground for proceeding under the said section. He should not act blindly on the Police report. He should scrutinise the police report and should exercise his discretion judicially and see whether it is necessary to proceed against the petitioners under the said section. If only the Magistrate had cared to peruse the report, he would have seen that it did not warrant such a proceeding against the petitioners.
10. The difference between Section 107, Cri.P.C. and Section 145, Cri.P.C., must be kept in mind by the Magistrate. I have pointed this out in many orders and judgments of mine. The proceeding under Section 107, Cri.P.C. is directed against a person or persons who by their wrongful act is or are likely to commit a breach of the peace. Before starting the proceeding under the said section against a person particularly when it relates to dispute about land, the Magistrate must be satisfied that the complainant was beyond doubt in possession of the land and that the accused person in spite of that patent fact was disturbing the said possession by his wrongful conduct and by taking law into his own hands and thereby attempting to create breach of the peace.
In this case, I find that no such prima facie evidence was placed before the Magistrate either by the complainant or by the Police and also find that the complainant himself wanted action only under Section 145, Cri.P.C., that is, he prayed that the Magistrate may decide is to who was in possession of the property and who was creating breach or the peace in the dispute relating to possession. It is a clear case where the Magistrate should have proceeded only under Section 145, Cri.P.C. The proceeding under Section 145, Cri.P.C. is not directed against any particular person or persons as in the case of Section 107, Cri.P.C. But it is intended to resolve the dispute relating to the possession of land by deciding who was in possession of the land on the date of the proceeding and thereby to prevent a breach of the peace. This distinction between Section 107, Cri.P.C. and Section 145, Cri.P.C. must be clearly kept in mind by the Magistrate before he decides under which of the sections he will proceed in a particular case.
11. In the case before us, the petitioners were clearly in possession of the property from 1.5.1862 to 15.6.1962 when the Magistrate started the proceeding. The complainant had alleged, of course, that he was in possession till 1.5.1062 and that the petitioners forcibly dispossessed him on that date. What the Magistrate had to decide was whether the complainant was in possession till 1.5.1962 and whether the story of forcible dispossession on that date by the petitioners was true. This matter had to be : decided only under Section 145, Cri.P.C. to proceed under Section 107, Cri.P.C. against the petitioners and to direct them to execute interim bonds to Keep the peace would mean that the Magistrate has already decided on 15.6.1962 that the petitioners forcibly dispossessed the complainant on 1.5.1962 and that too without any prima facie evidence before him of the possession of the complainant and of the forcible dispossession by the petitioners, if only the Magistrate had cared to scrutinize the Police report, he would himself have been satisfied, as have pointed Out, that the belated report of the Police Officer was a mala fide one and should never have been acted upon.
The Magistrate should only have proceeded in this case under Section 140, Cri.P.C. and if he found that it was necessary to prevent a breach of the peace to attach the property, he should have proceeded to do so. the should never have started proceedings against the petitioners under Section 107, Cri.P.C. The proceedings started toy the Magistrate on 15.6.1962 under Section 107, Cri.P.C. against the petitioners should also therefore be quashed. It is a clear abuse of the process of the Court to have started the proceedings under Section 107, Cri.P.C. against the petitioners.
12. The reference is accepted and the order of the Magistrate dated 13.6.1962, directing the petitioners to execute interim bonds is set aside. I go further and quash the entire proceedings before the Magistrate under Section 107, Cri.P.C. acting under Section 561, Cri.P.C. The Magistrate may start proceedings under Section 145, Cri.P.C., if he thinks that a breach of the peace is likely. But he will do so only on the basis that the petitioners have been in possession from 1.5.1962.