1.This case has been very properly referred to the High Court by the Sessions Judge of Budaun under Section 438 of the Code of Criminal Procedure. The matter came before him by way of an application for revision under Section 435 of the Code of Criminal Procedure off an order of a first class Magistrate.
2. There was a dispute about the possession of a house between two persons, Sahib Lal and Babu lal of the one part and two other persons Sri Deo and Kishen Lai of the other part. The Magistrate instituted proceedings under Section 145 of the Code of Criminal Procedure, He decided in favour of the first party and declared them entitled to possession under Section 145., He then found that there was a fear of disturbance on behalf of the second party, and ordered each of item to execute a bond of Rs, 200 each and to find a further surety of Rs. 200 each to keep the peace for one year and in default to undergo simple imprisonment.
3. There is nothing in Section 145 or in any section of the Code relating to proceedings there under to justify such an order. Information that a dispute is likely to cause a breach of the peace is one of the conditions precedent for proceedings under the section, but the Magistrate cannot in such proceedings make any order not provided for by the section. The Sessions Judge on the matter coming up before him called upon the Magistrate to afford an explanation.
4. The Magistrate has cited a number of cases, but none of them are applicable. The most that they decide is that proceedings may be taken either under Section 107/118 or under Section 145. But that does not justify an order being made under one section in a proceeding taken under another. The net result of the Magistrate's order would seem to be that it does not really matter under what section the proceedings are brought; if there is any fear of disturbance, the Magistrate can exercise his powers of binding over some one.
5. I should not have troubled to discuss this question at any length, if I did not find some reason for thinking that the powers conferred upon Magistrates to make orders under Sections 107, 110 and 145 are exercised with considerable levity, and with insufficient regard for the technical and restricted provisions of the Code, and for the necessity for treating such proceeding's with the same care and the same insistence upon careful proof of the precise matters alleged and comprised in the charge against a party, as in any other judicial criminal proceeding.
6. The Sessions Judge quite properly has himself raised the preliminary question whether having regard to the provisions of Section 435, Sub-section (3), of the Code of Criminal Procedure an order under Chapter XII, which includes Section 145, can properly be referred to this Court at all. I agree with his view that the order in this case binding over the second party is not an order under Section 145. It is an order made wholly without jurisdiction. It is an order which could be made, as is generally said, under Section 107, but which is more accurately described as an order under Section 118 in respect of matters comprised in Section 107. Such an order can only be made after compliance with the provisions of the sections which follow upon Section 107, which was not done.
7. The order of the Magistrate, not being within Section 435 (3) of the Code of Criminal Procedure, was properly referred to this Court.
8. The order directing Sri Deo and Kishen Lal to give security and all consequential directions contained in that order must be set aside, and I order accordingly.