T.N.R. Tirumalpad, C.J.
1. This is an application under Section 561-A, Cr.P.C. and Article 227 of the Constitution for quashing the order passed by Shri Ibungoyaima Singh, 1st Class Magistrate, in Criminal Miscellaneous Case No. 2 of 1961 by which he converted the proceeding pending before him under Section 107, Cr.P.C. into a proceeding under Section 145 Cr.P.C.
2. The petitioner herein filed a complaint before the said Magistrate under Sections 447 and 506, I.P.C. against the respondent stating that he was in cultivating possession of the land covered by patta No. 39/35-B.T. for the past few years and that on 23-1-1961, the respondent trespassed into the land armed with Dao and began to plough the land and threatened the petitioner with death if he interfered with the cultivation. The complaint was sent for investigation by the Police and the Police reported on 30-1-1961 that there was likelihood of breach of the peace if the respondent was not bound over under Section 107, Cr.P.C. Thereupon the Magistrate took up the case on 1-2-1961 and issued summons to the parties. Then on 2-5-1961, the Magistrate drew up proceedings under Section 107, Cr.P.C. against the respondent and directed him to show cause why he should not be ordered to execute a bond for Rs. 500/-with one surety of like amount for keeping the peace for a period of 6 months.
3. In the meantime, the respondent had filed a suit in the Civil Court for declaration of his title and confirmation of possession against his mother and sisters. The petitioner herein is a son of one of the sisters of the respondent and he was also impleaded as a party to the suit.
The respondent applied for a temporary injunction against the defendants in the suit, but the Munsiff dismissed the application on 22-4-1961. The respondent took the matter in appeal to the District Judge and the appeal was also dismissed on 26-5-1961.
It has to be mentioned at this stage that there were patta transfer proceedings in 1959 in respect of this very land in which the contending parties were the respondent on one side and the respondent's mother and sisters and the petitioner on the other. In the course of those proceedings, both parties admitted the possession of the petitioner of the said land, the respondent saying that the petitioner was his lessee, and the respondent's mother and sisters contending that the petitioner was their lessee. The S.D.C. who dealt with the proceedings directed the parties to establish their title in a Civil Court by his order dated 6-3-1959.
It was after this that the petitioner filed the criminal complaint against the respondent and the respondent filed the Civil Suit, both in 1961 January.
4. After he failed to get an order in his favour from the Civil Court In the injunction petition, the respondent filed -N.F.I.R. Case No. 34 of 1961 before the same Magistrate with whom the other case filed by the petitioner was pending and requested action under Section 145, Cr.P.C This was on 8-6-1961. This petition was sent by the Magistrate for a Police report and the Police duly reported on 9-6-1961 that there was likelihood of breach of the peace between the parties regarding possession of the land and, the Magistrate was requested to keep the land under attachment. On the same day, the Magistrate passed an order under Section 145 (1), Cr.P.C. and directed the land to be kept under attachment.
The petitioner appeared before the Magistrate and filed a petition to drop the proceedings under Section 145 in view of the fact that proceedings under Section 107, Cr.P.C. were already pending against the respondent. On this application, arguments were heard on 7-8-1961 and the Magistrate passed the order on that date that as both parties admitted that the proceedings under Section 145 were redundant, the proceedings were dropped. Thus, the N.F.I.R. Case No. 34 of 1961 was closed.
5. What the respondent did then was to file an application in Criminal Miscellaneous Case No. 2 of 1961 requesting that the said proceedings may be converted into one under Section 145, Cr.P.C. instead of one under Section 107, Cr.P.C. This was opposed by the petitioner and the Magistrate posted it for arguments to 11-8-1961. I find from the order sheet however that arguments were heard on 10-8-1961 and it was posted next to 23-8-1961. On 23-8-1961, I find from the order sheet 'Order announced. Fix 5-9-1961'. On 5-9-1961, it was again adjourned at the request of both parties to 22-9-1961. i now find front the certified copies of the orders of the Magistrate filed by the petitioner that in the meantime he applied for the certified copies on 5-9-1961 and obtained the certified copies on 13-9-1961.
A perusal of the certified copies produced in Court shows that the order passed on 23-3-1961, as seen in the certified copy, is completely different from the order as now seen in original, sent up to this Court along with the records. The original order seen at present is a detailed order showing why the Magistrate felt it necessary to convert the proceedings into one under Section 143, Cr.P.C. But the order seen from the certified copy is a very short order in which the reasons mentioned for converting the proceedings into one under Section 145, Cr.P.C. were that there was dispute about possession of land covered by patta No. 39/35-B.T. standing in the name of the respondent and that this dispute about possession would result in the decrease of food production in the locality and hence the proceedings will be converted Into one under Section 145 Cr.P.C. and parties were forbidden to enter on the land during the pendency of the case.
6. In the original order, as now seen, the Magistrate-has discussed about the dispute between the parties regarding the land as disclosed from the patta transfer proceedings in 1959 before the S.D.C, Bishenpur and he has stated that the respondent's claim to possession cannot be taken as a mere pretence in the absence of conclusive proof to the contrary and that there was a bona fide dispute relating to the land and that the order passed by the Civil Court rejecting the prayer for injunction did not necessarily mean confirmation of possession of the petitioner, that the question of possession has not therefore been decided by any competent Court in favour of the petitioner and that therefore the nature of the case and the circumstances did not warrant Initiation of proceedings under Section 107, Cr.P.C. against the respondent alone and that either a proceeding-has to be started under Section 145, Cr.P.C. or proceedings under Section 107, Cr.P.C. have to be started against both parties, but that as both parties were cultivators by occupation, he did not think it expedient to start proceedings under Section 107, Cr.P.C. as it will be forbidding cultivation in the land, which is a paddy field at least for some period and this will not only cause hardship to the party who may be found more entitled to possession, but also result in decrease of food production in the locality and that he would therefore convert the proceedings into one under Section 145, Cr.P.C. and forbid both parties to enter on the land during the pendency of the case.
7. Thus, it will be seen that the original order as now seen and the certified copy of the order given to the petitioner are completely different. It would appear that the Magistrate has changed the original order which was in the file when the certified copy was granted to the petitioner and that subsequently before the papers were sent to this Court, he has substituted the present order which is now seen in the file. This is indeed a very serious matter which has to be further probed into. Parties have to take further steps on the strength of the certified copies given to them of orders of Court. A Court cannot change its order when once it is pronounced. I do not wish to say more about this at this stage. The entire file will be sent to the A.D.M. - Mr. Goswami. He is directed to hold an enquiry into this matter after getting the explanation of the Magistrate and he will submit a report to this Court within 3 weeks of the receipt of the records by him.
8. Whether we take the order of the Magistrate to be the one seen in the certified copy or the one seen in the file sent to this Court, I do not find it stated in either of them that the Magistrate was satisfied that a breach of the peace was threatened. For a Magistrate to get jurisdiction to take proceedings under Section 145, Cr.P.C. he must be satisfied that a dispute likely to cause a breach of the peace exists concerning land, whereas to start proceedings under Section 107, Cr.P.C. the Magistrate has to be informed that a person was likely to commit a breach of the peace and in the opinion of the Magistrate there was sufficient ground for proceeding. Thus, the difference between Section 107, Cr.P.C. and Section 145, Cr.P.C. is firstly that under Section 107 there need be no dispute relating to land and secondly in the case of Section 107, the proceedings are started against a person who is likely to commit a breach of the peace, whereas under Section 145 as a result of land dispute, a breach of the peace is likely to be caused. Thus under Section 145, the action is not directed against any particular party and the Magistrate is only concerned with the question whether there is a dispute relating to land and whether a breach of the peace is likely as a result of the dispute. This situation is sought to be resolved under Section 145 by the Magistrate deciding the question of possession of the land on the date he started the proceedings and by directing the party, who is not found to be in possession to desist from interfering with the possession of the party whose possession the Magistrate would declare under the said section.
9. Keeping the above principles in view, we have to see how the Magistrate proceeded in the present case. On the complaint of the petitioner under Sections 447 and 506 Cr.P.C. and on the Police Report, the Magistrate found that there was sufficient ground for proceeding against the respondent under Section 107 Cr.P.C. The respondent's attempt to get an Injunction from the Civil Court against the petitioner regarding his possession of the land failed. The order in the mutation proceedings in January, 1959 passed by the S.D.C. showed that the respondent's claim itself was that the petitioner was in possession of the land as his tenant. The respondent's case of title is, a matter now pending in the Civil Court. The petitioner's-possession cannot be disturbed by the respondent so long as the tenancy continues and so long as he has not been evicted therefrom by due process of law.
The respondent's attempt, on his failure to get a favourable order from the Civil Court, was to file an application under Section 145 Cr.P.C. namely, N.F.I.R. No. 34 of 1961. Perhaps, neither the Police nor the Magistrate knew at the time when that petition was filed by the respondent on 8-6-1961 that Section 107 proceedings were pending against him and that he had been directed on 2-5-1961 to show cause why he should not be called!, upon to give security for keeping the peace for six months. Anyway, it was brought to the notice of the Magistrate on 26-6-1961 by the petitioner when he applied to drop the proceedings. The Magistrate failed to realise that the petitioner's possession was accepted in the Mutation Proceedings in 1959 by both the parties who were claiming title to the land. He also failed to realise that he had started proceedings under Section 107 against the respondent on 2-5-1961 after he was satisfied from the Police report dated 30-1-1961 that the respondent was likely to create a breach of the peace.
In suitable case, a Magistrate has power to convert proceedings under Section 107 Cr.P.C. into proceedings under Section 145 Cr.P.C. But the respondent though served in the Section 107 proceedings in February, 1961 did not file any counter statement in those proceedings and did not pray for conversion of the proceedings into one under Section 145 till 7-8-1961, though he was directed to furnish security on 2-5-1961 to keep the peace. His attempt, under such circumstances, to get an order under Section 145(1) Cr.P.C. by filing N.F.I.R. No. 34 of 1961 knowing full well of the proceedings pending against him under Section 107 Cr.P.C. and suppressing the same, showed clearly that pending the proceedings, he had attempted to enter upon the land which was clearly in the possession of the petitioner according to the respondent's own version in the mutation proceedings. Thus, it was again the respondent who had attempted a breach of the peace during the pendency of the proceedings under Section 107 Cr.P.C. against him. This should have shown to the Magistrate that it was not a case to start proceedings under Section 145, but to proceed with the proceedings under Section 107 Cr.P.C. against the respondent.
10. It was clearly wrong on the part of the Magistrate therefore to convert the proceedings under Section 107 Cr.P.C. into one under Section 145 Cr.P.C. The Magistrate's observation that there was likelihood of decrease in food production is not a ground for starting proceedings under Section 145 at all. It is not a fact to be taken into account by a Court in starting proceedings under Section 145. He was behaving more like an Executive Officer interested in food production than as a Court, Even then, he failed to see that forbidding the parties to go to the land during the pendency of the case, would result only in decrease of food production. The Magistrate had no jurisdiction in proceedings under Section 145 to forbid both parties from entering on the land. He can only attach the land if he considered the case one of emergency.
11. It is clear therefore that the order of the Magistrate dated 23-8-1961 whether it be the original order which is now seen in the record, or whether it be the order seen in the, certified copy granted to the petitioner cannot be allowed to stand. The said order converting the proceedings into one under Section 145 is, therefore, sat aside and the Magistrate is directed to deal with the proceedings under Section 107 Cr.P.C. pending before him against the respondent and to decide whether it is necessary that the respondent should be directed to furnish security to keep the peace.