H.R. Krishnan, J.
1. This case arises out of a report by the learned Sessions Judge Dewas, in an application in revision by the losing party in a proceedingunder the Code of Criminal Procedure, the nature of which is to be set out presently. This involves the consideration of the scope of the respective Sections 107 and 145 of the Code and the effect of mixing them up in a single proceeding.
2. There was a dispute concerning some agricultural land, the identity of which was admitted by the parties. The applicants in revision were found by the learned First Class Magistrate not to have been in possession originally, but to have forcibly dispossessed the non-applicant within two months of the preliminary order of the learned magistrate. Till then, it was found that the non-applicant in revision was in possession. Accordingly, the magistrate made a final order under Section 145 in favour of the non-applicant directing the applicants to give up possession and not to disturb him, and further bound down under Section 107 Criminal Procedure Code, the members of the applicant's party to keep the peace, and called upon them to execute the appropriate bonds with sureties.
In the preliminary order itself, both Sections 145 and 107 Criminal Procedure Code were mentioned and so also were they mentioned in the notice on the applicants' party calling upon them, on the one hand, to produce their documents and bring their evidence on the factum of their possession on the land and simultaneously to show cause why they should not be bound down under Section 107 with such and such sureties for maintaining the peace for a period of one year under Section 107.
There were no separate proceedings but a single proceeding under both sections which is unusual enough. Both parties came, filed written-statements, adduced oral evidence; entered into argument and the like, but neither party objected to this mix up. After the final order, the losing party -- that is, the present applicants -- went up in revision to the Sessions Judge and pointed out that it was wrong to have composite proceedings under both the sections and as such, the entire proceeding should be quashed, and the findings of the magistrate about possession under Section 145 and his order under Section 118 should be set aside.
The learned Sessions Judge accepted this position and has accordingly made a report recommending that the order should be set aside. Besides this main ground, he has also pointed out that oral evidence should not have been allowed because the parties did not file any affidavits. There is also an indication that on the merits the learned Sessions Judge was not satisfied on the finding in favour of the non-applicants' possession but that relates to facts and cannot, in any event, be gone into in revision.
3. It is obvious that the scopes of the two Sections 107 and 145 Criminal Procedure Code, are different and it is not proper for a magistrate to mix them up in the same proceedings. Certainly, there is no legal ban against the magistrate proceeding simultaneously under both the sections against any party or parties, but the occasion would be unusual and, in any event, it would be proper to keep the two proceedings quite separate.
The only common element in both the proceedings is that a breach of peace is likely, and it has to be forestalled and prevented by the Magistrate;but even in cases where the breach of peace is likely in course of a dispute regarding immovable property, the analogy stops there. When there is no immovable property involved, it is obvious that Section 145 does not come in, and it would be for the magistrate to consider whether action under Section 107 is indicated.
But where there is a dispute concerning immovable property, it is the magistrate's discretion to decide whether he should at the first instance proceed only under Section 145, or he should simultaneously proceed in different proceedings under both the sections, or he should dispense with Section 145 altogether and proceed only under Section 107 Cr. P. C. Broadly speaking, where there is something like a genuine dispute and the magistrate is unable immediately to ascertain which party is in possession, or has been in possession within two months from the date of the preliminary order, he will do well to proceed under Section 145 Criminal Procedure Code.
But that does not prevent him from proceeding under Section 107 simultaneously; in fact there may be cases where this would be very necessary, as the existence of a proceeding under Section 145 is not always a guarantee against violent persons beginning to fight about possession of the property. In such event, it would be appropriate for the magistrate to draw proceedings under Section 107 against one or both the parties, take ad interim bonds if necessary which will assure that the peace would be maintained for the time, keep those proceedings pending, and meanwhile get on with the one under Section 145 Criminal Procedure Code.
After the decision under Section 145 it will be a comparatively straight matter to decide whether one of the parties to the dispute should at all be bound under Section 107 Cr., P. C. Again, there may be another set of cases where the possession of one of the parties is obvious, there having been very recently a decision of the Court, or a delivery of possession, or a conviction in a criminal case, or, as for that matter, a finding under Section 145 itself.
In such circumstances, there is really no uncertainty about possession, one of the parties being in possession, the other would be setting up a presence and trying to take possession by force obviously after breaking the peace. In such a position, there is clearly no sense in reagitating the obvious under Section 145 Criminal Procedure Code.
The proper course would be to bind down the party setting up a pretence under Section 107 Cri. P. C. Thus, broadly speaking, it would be at the discretion of the magistrate, who should, with due regard to the circumstances take action under one or the other of the sections or in simultaneous, but different proceedings, take action under both the sections.
4. The mistake on the part of the magistrate in the present case is not that he invoked both the sections; but that he invoked both of them in the same proceeding. Such a thing might confuse the parties or the magistrate himself. But whether 5t does confuse any of them would depend upon circumstances of each case and can be ascertained from their conduct; it cannot be asserted, it should necessarily cause confusion.
The learned Sessions Judge seems to feel that the case reported in Ramesh v. Kishandas, 1957 Jab LJ 780, 'clinches the issue' and decides that the mixing of the two sections in the same proceedings is contrary to the provisions of the law. By this, presumably the Sessions Judge understands that, prejudice or no prejudice, once the two sections are mixed together in the same proceeding, it is illegal and should be quashed. I find nothing in the ruling to support this extreme view.
In that case, the magistrate was obstensibly proceeding under Section 145 winch he mentioned, but called upon one party--and one party only--to furnish security for 2000/-, to restore possession to the complainant, and further to give an undertaking not to claim the shop in dispute. Obviously, such an order could not have been passed under Section 145 Criminal Procedure Code. On the other hand, it indeed, he wanted to Proceed under Section 107, he should have drawn up proceedings under that section, he should not have asked the applicants to show cause why security should not be taken while acting under Section 145.
That case obviously was one in which everybody concerned had confused himself and there was clearly prejudice and miscarriage of justice. When it is said that a particular procedure is against the law, in a context like this, it only means that in the case concerned it has caused a miscarriage of justice and does not necessarily mean that a mandatory provision bad been violated.
5. While, in the instant case, I may not foe understood as in any manner approving of this mixup, I really find there has been no confusion in the mind of the applicants in revision and no miscarriage of justice. The practical result has been just as if the magistrate had started two separate proceedings, one under Section 145 and the other under Section 107, had gone ahead with the former meanwhile having issued notice under the latter for the cause and kept it pending and finally after the finding in the former case, called upon the party at fault to enter into bonds under Section 107. There is nothing objectionable in this, except the form of the proceedings.
The test, therefore, is one of prejudice and miscarriage and not of observance of the provision to the letter. It is of interest to note that neither in Section 530 nor in 537, Cr. P. C., is there an express mention as would cover such a case. In any event, this would not come under Section 530 because the magistrate was competent to demand, security to keep peace as he was also competent to proceed under Section 145, On the other hand, the wording of Section 537 is not exhaustive and the headings mentioned there should be treated as setting out certain genera rather than species. Looked at that way, it is a case where one should examine Whether prejudice has been caused.
6. In this connection the principle laid downby the Supreme Court in Gurbachan Singh v. Stateof Punjab, (S) AIR 1957 SC 623 should always beborne in mind.
'In judging a question of prejudice, as of guilt, Courts must act with a broad vision and look to the substance and not to technicalities, and their main: concern should be to see whether the accused had a fair trial, whether he knew what he was beingtried for, whether the main facts sought to be established against him were explained to him fairly and clearly, and whether he was given a full and fair chance to defend himself.'
In proceedings under these sections, the persons concerned are not accused in the strict sense of the term; still, these principles apply just the same. In the present case, there was a preliminary order made by the magistrate on 3-8-1959 and served On the applicants which is to the following effect:
'Proceeding under Sections 107-145 Criminal Procedure Code.
As a result of the information given by the petitioners in their petition under Sections 107 and 145 Cr. P. C., prima facie the following appears:-The petitioners have a well in village .... and you are trying to take possession by force over it. You have already removed the fencing around the well and consequently, there is fear that you are going to break the peace. Therefore proceedings are being taken under Section 145. It is necessary that during the proceedings you should not take forcible possession over the said well and you should not break the peace. For this purpose you should appear On 25-8-1959 and show cause why you should not be called upon to enter into personal bonds with surety of 500/- each for keeping peace for a period of one year. In case you do not appear, the matter will be investigated ex parte. A copy (of the petition) is being sent herewith.'
This would show that while the sections had been mixed up (which is of course wrong) the magistrate has kept the operation of the two sections distinct; on this, the party noticed could also have had no doubt.
7. It is also significant that at no stage during the proceedings before the magistrate did the present petitioners make any grievance in this regard. But on the contrary, went on to present their evidence and argued their case. This also shows that there has been no prejudice and miscarriage of justice as the parties knew what it was all about. Similarly, in the final order also, the decision under the two sections though mentioned in th'e same order, had been kept distinct:
'I find that the opposite party (the present petitioners) took forcible possession of the property within two months before the date of the proceedings from the opposite party (the present nonapplicant). Thus, they have taken illegal possession and there is likelihood of the breach of peace at any time ..... They should enter into bond under Section 107 for the keeping of the peace for a period of one year for 300/- in each case with one surety each for the like amount. In default, they should suffer simple imprisonment for that period....'.
8. The learned Sessions Judge has pointed but that the notices and orders do not make any reference to Sections 112, 113 or 118, that is, those under which the show cause notice is issued, the preliminary order is read over and explained to the person proceeded against, and the final order to give security is made. In this connection, the ruling reported in Nahar Singh v. The State, AIR 1951 Raj 150, has been cited by the applicants in revision.
It points out the advisability of starting separate proceedings under the two sections. That of course, is clear. In addition, it holds that in the absence of an order under Section 112 and in the event of non-compliance with Section 113, the order for security should be set aside. There is also no doubt about this. But the emphasis should be on the effect of the sections and not their mere mention In this case, we have a clear notice served on the party calling upon them to show cause why they should not be ordered to enter into bonds to keep peace etc., though only Section 107 is mentioned and not 112.
In these circumstances, the mere nonmention of Section 112 is of no consequence because a notice itself is exactly of the same effect. Had there been no such notice, the position would have been different Similarly, Section 113 provides that the contents of the preliminary order should be explained to the person proceeded against; but if the order has been served on him and he shows by his conduct that he understood clearly what it was all about, a mere nonmention of the action taken under Section 113 would have no practical consequence, Similarly. the final Older is under Section 118, Cr. P. C., though it is not mentioned. I would find in this case that the irregularity of combining the two sections in one proceeding has not resulted in miscarriage of justice.
9. Thus, on this ground, I find that while there has been an irregularity, it is not one which calls for the quashing of the proceedings.
10. The learned Sessions Judge has pointed out another irregularity, namely, that the parties while filing statements and documents, did not file any affidavits but were all the same, allowed to adduce oral evidence. After the amendment of the Cr. P. C. in 1956, the parties to a proceeding under Section 145 should at the first instance, put in affidavits as well as documents. Formerly, the witnesses had necessarily to be brought and examined in accordance with the procedure prescribed for summons cases.
Now, affidavits are put in by which method, it Was expected that public time would be saved. However, the issue of summons without any affidavit at all, cannot be considered to be an illegality going to the root of the proceedings. Under Section 145, summons to examine witnesses can be issued either under the proviso to Sub-section (4) or under Subsection (9). If they are issued under the former provision, obviously, the summons can be addressed only to those who have put in affidavits; the examination also should be restricted to the contents of the affidavits.
This is certainly consonant with the principle that once the law provides for the saving of public time by the filing of affidavits, it cannot be evaded by calling the same witnesses and introducing other matters. But then there is no such restraint on the magistrate or on the scope of the examination on oath, if at any stage of the proceeding on the application of either party the magistrate at his discretion issues summons to any witness directing him to attend or to produce any document or thing.
Sub-section (9) is wider than the proviso to Sub-section (4). Indiscriminate application of that sub-section will certainly defeat the purpose of theamendment to Sub-section (1) and draw over the proceedings just as long as they could have been under the unamended law. But that is for the magistrate to decide. Thus, simply because a summons had been issued to witnesses other than those putting in the affidavits and they had been examined and their oral evidence considered, I am not prepared to find that there has been any breach of a mandatory provision.
11. In this connection, the applicants in revision have cited Bhagwat Singh v. State, AIR 1959 All 763. With all respect, I note that this judgment does appear to have stated the principle far too widely. I do not also, with all respect, agree with the Allahabad ruling that Sub-section (9) is limited by the proviso to Sub-section (4). The later sub-section is very wide and really enables a party to move the magistrate to issue summons for the attendance of any witness who may or may not be a person putting in an affidavit. The proviso to Sub-section (4) on the other hand, enables the magistrate to summon and examine a person who puts in an affidavit possibly where he finds the affidavit vague or one otherwise calling for some clearing.
12. In the result, the recommendation of the learned Sessions Judge is not accepted and the application in revision is dismissed.