1. The station officer, Rampaili, filed an application in December 1947 requesting action under 9. 107, Criminal P.C. against party No. l, consisting of Laxminarayan and 8 others, and party No. 2 consisting of Taradatta and 14 others, as he apprehended a breach of the peace. On 6-3-1948, the Sub-Divisional Magistrate, Waraseoni, passed an order under Section 112, Criminal P.C. against both parties. Written statements were thereafter filed and the case was fixed for evidence on 7-7-1948 when it was adjourned to 20-7-1948 on which date party No. l filed an application for the vacation of the preliminary order on the ground that there was no material against them. Arguments were heard on 13-9-1948, and on the 21st of that month the Sub Divisional Magistrate, Waraseoni, vacated the preliminary order vis-a-vis party No. 1 and discharged all the members of that party. Thereafter, an application for revision of that order was made to the Additional Sessions Judge, Balaghat, and he has now reported the case under Section 438, Criminal P.C., to have the order of discharge set aside on the ground of its illegality.
2. Party Ho. 2 had, on 18 9-1948, applied to the Sub-Divisional Magistrate, Waraseoni, to obtain certain applications made by the members of that party to the District Magistrate and the District Superintendent of Police, Balaghat, against the members of party No. 1; and the Sub-Divisional Magistrate in referring to this application in the order discharging party No. 1 made the following observations:
No such applications have been filed by the Police nor seem to be in D. S. P. and D.C.'s office as none have been received so far as per my order, dated 18-6-1948.
3. The reference made by the learned Additional Sessions Judge, Balaghat, was eminently proper, inasmuch as there were on record the application of the station-officer, Rampaili, to the effect that he apprehended a breach of the peace between the contending factions and an application, dated 19-12-1947, from Taradatta, a member of party No. 2, to the effect that in Katori, the village concerned, several members of party No. 1 had oppressed and tyrannized over the public there. There was also an allegation in that application that goondaism was in full force and that if it were not checked, there was every likelihood of a broach of the peace. The Sub-Divisional Magistrate, Warasooni, should also have obtained the applications referred to by party No. 2 before he passed the order discharging the rnembora of party No. 1. In short, I am clear that the members of party No. 1 were discharged without adequate or duo enquiry.
4. Their learned Counsel pointed out cogently enough that both parties should not have been proceeded against jointly, i. e., where two contending parties are opposed to one another and inclined to commit an offence involving a breach of the peace, they cannot be said to have associated together in the manner contemplated by Section 117 (5), Criminal P.C. and the joint trial of such contending parties is illegal. This was the view taken in Har Dutt v. Emperor A.I.R. 1916 ALL 338 : 17 Cri. L.J. 165 and also in Khetramohan Das v. Emperor : AIR1943Pat376 Meredith J. had examined the question in Sajan Sahu v. Emperor : AIR1943Pat417 and followed the decisions in liar Butt Panda v. Emperor A.I.R. 1916 ALL. 338 : 17 Cri. L.J. 163 supra, as well as in Kamal Narain v. Emperor, 11 C.W.N. 472 : 5 Cri. L.J. 197 to the effect that two opposing parties in a dispute cannot be proceeded against under Section 107, Criminal P.C. and bound over to keep the peace in one proceeding. I am also in respectful agreement with his observations to the effect that where two opposing parties are proceeded against in one proceeding, prejudice must almost inevitably be the result, inasmuch as the persons proceeded against and, as it were, in the position of accused persons, are put into the witness-box and cross-examined.
5. In the circumstances, the order of discharge is set aside and the members of party No. 1 shall be duly proceeded against separately, i.e., in a proceeding different from that now in question.