1. These references arise out of proceedings under Sections 107/112 and 117, Sub-section (3), Criminal P. C.
2. It appears that there are two parties in the Sadh Community of Farrukhabad. One party i3 known as party No. l probably because it was so named in some litigation, and the other is known as party No. 2. There is a 'Chauki Sadhan' at Farrukhabad where be to the parties claim to have a right of worship and to hold bhandaras, that is, religious feasts, on certain dates. There has been civil and criminal litigation between the parties. In March or April 1947, the first party wanted to hold a bhandara. Proceedings under Section 147, Criminal P. C., were initiated by the City Magistrate as he apprehended a breach of the peace. By an order dated 28th May 1947, the learned Sessions Judge declared the rights of be to the parties in the 'Chauki Sadhan' to perform worship and to hold bhandaras. be to parties were dissatisfied and they filed revisions before the learned Sessions Judge which were ultimately decided by a learned Judge of this Court. Hardly had this litigation ended when a fresh trouble started.
3. On 18th August 1947 the first party was holding its bhandara and, it is alleged, that members of the second party came at the place where the bhandara was being held and wanted to interfere with the first party holding the bhandara. The police and two Magistrates appear to have reached the scene as they apprehended that there might be a breach of the peace. The Magistrates orally ordered the police to arrest a number of persons belonging to the second party. These persons were accordingly put under arrest and were subsequently released, some on the same date and some sometime later, upon their furnishing sureties for personal attendance. On the same date, that is 18th August 1947, the police made several reports against several sets of persons belonging to the second party. It was alleged by the police in its reports that while the members of the first party were holding their bhandara the second party came in large numbers and wanted forcibly to prevent the first party from doing the same and that there was a danger of the breach of peace, and that action was required to be taken under S3. 107/112, Criminal P. 0. The learned City Magistrate passed an order under Section 112, Criminal P. C, calling upon the members of the second party to show cause on 22nd August 1947, why they should not be bound down to maintain the peace for a period of three months commencing from 18th August 1947. He also took immediate action under Section 117 (3), Criminal P. C., as he apprehended an immediate breach of the peace. Upon that action some of the members of the opposite party were ordered to execute bonds to keep the peace for that period.
4. The opposite parties filed two applications in revision against be to these orders viz., the order under Section 112 and that under Section 117 (8 , Criminal P. C, before the learned Sessions Judge of Farrukhabad. The learned Sessions Judge has made these references by one single order in be to these cases and has recommended that the orders passed by the learned City Magistrate should be quashed in view of the fact that the orders were irregular and because there was no longer any danger of breach of peace as the time for which sureties were required had already elapsed and the occasion of the holding of the bhandara which gave rise to the apprehension had already passed.
5. I have heard Mr. B. S. Darbari on behalf of the first party and Mr. Vishwa Mitra on behalf of the second party at length. It appears to me that in this case there was certainly an irregularity in commencing the proceedings. When there was an apprehension of a danger of the breach of peace, the Magistrate who was on the spot should have there and then formulated an order under Section 107 read with Section 112, Criminal P. C, and served it on the party, before he proceeded to order the arrest of the second party. A Magistrate ha9 no power to order arrest with a view to his taking action under Section 107, Criminal P. C, unless the case falls under a. 107 (8), that is to say, the Magistrate is not authorised to initiate proceedings under that section. It does not appear in this case that the Magistrates who ordered the police to apprehend the members of the second party were not so authorised. After notice had been drawn up and served on members of the second party it would have been open to the Magistrate to order their arrest under Section 114, Criminal P. C. In this case the arrest was ordered first and then proceedings under Section 107, Criminal P. O., were started, This was certainly irregular.
6. The learned Sessions Judge, however, has gone into the merits of the case. That was not the stage at which the merits of the claims of the different parties could be considered. The second party had rushed to the learned Sessions Judge before the occasion arose for the learned Magistrate to consider the respective merits of the parties. That occasion would have arisen when the second party had shown cause in accordance with the notice served upon them by the learned Magistrate. Before cause was shown, however, they filed a revision. In my opinion the learned Sessions Judge was in error in going into the merits of the case and virtually holding that the second party had a right to go there and to say their own prayers in their own way. The Court is not in a position, in the present state of affairs, to pronounce judgment upon the merits of the claims of any party.
7. The learned Sessions Judge hag stated in his judgment that the occasion which gave rise to the initiation of the present proceedings, was the holding of the bhandara on 18th August 1947. The Bhandara has been held peacefully because of the intervention of the police and the occasion has passed and that there is no longer any danger of a breach of peace. I am not quite sure whether the fact that bhandara has been already held would be by itself a sufficient reason for dropping the present proceedings. Where the danger of breach of peace exists only because of the happening of a certain event e. g., the observance of a particular religious festival, and once that event has happened, the danger no longer exists then certainly the proceedings should be dropped; In the matter of Basdeo, 26 ALL. 19a and Mirza Zulfakar Beg v. Emperor A.I.R. (14) 1927 Pat. 231 : 28 cr. h. J. 719). But where although the occasion which gave rise to the apprehension of a breach of peace has passed peace-fully because of police protection, the danger still lurks because of the strained relations between the parties, the fact that the event has passed off, will not be a sufficient justification for the dropping of the proceedings Surya Kantabe v. Emperor 81 Cal. 350 and Ayodhya Prasad v. Emperor 8 A. L. J. 1080 : 121. c. 213). In the present case no evidence having as yet been tendered by either parties, it cannot be said that the proceedings should be dropped because the bhandara has already been held, having regard to the strained relations between the parties, to the constant litigation between them and to the fact that the bhandara can be held at any time by any of the parties. If, however, the question arises in future, it will have to be decided by the learned Magistrate upon the evidence tendered before him.
8. So far as the present case, however, is concerned, one fact is quite clear and in my opinion, is decisive of the case. The initial orders made on 18th August 1947, required the parties concerned to furnish securities for a period of three months commencing from 18th August 1947. That period has long expired and even if the learned Magistrate were now to hear the case upon the merits under Section 117, Criminal P. C, he would not be in a position to pass a final order in confirmation of his previous order and he would have to drop the proceedings. In the circumstances, the only proper order that can now be passed by me is to quash the original orders of the learned Magistrate dated 18th August 1917. I, therefore, accept these references and quash the orders passed by the learned City Magistrate on 18fch August 1947, against the second party. It will be open, however, to the learned City Magistrate to initiate fresh proceedings under Section 107, Criminal P. 0., if it may at any time appear to him that there is a danger of the breach of peace.