R.K. Das, J.
1. The Petitioners arc some of the members of the 2nd party in a proceeding under Section 107, Cri. P. C. On 20-12-63 the Sub-Inspector of Police, Burla submitted a report for drawing up a proceeding under Section 107, Cri. P C. against the petitioners and three others, the case against them being that they forcibly entered into the Bari of Rahas Jal (1st party), damaged his fence and threatened to assault him. As breach of the peace was apprehended he requested the Sub Divisional Magistrate to initiate a proceeding under Section 107, Cri. P. C. against the petitioners.
2. Originally, there were five members of the 2nd party and all of them were bound down by the trial Court. The appellate Court, however, discharged three of them and made the order absolute against the petitioners. The petitioners were directed to execute a bond for Rs. 500 with one surety for the like amount to keep peace for a period of one year.
3. The petitioners filed written statement denying the allegation made against them that they trespassed the Bari or threatened to assault the 1st party.
4. In support of possession of the 1st party, he examined a number of witnesses. The petitioners, however did not examine any witnesses and not a single member of the 2nd party also came forward to support their plea. Both the Courts accepted the story of the 1st party that he was in possession of the disputed bari and was threatened with assault by the members of the 2nd party Accordingly, to avoid breach of the peace, they bound down the petitioners under Section 107, Cri. P. C. for a period of one year Hence this revision before this Court.
5. The main contention of Mr. Misrn, learned counsel for the petitioners is that the dispute being essentially one relating to possession of immovable property, a proceeding under Section 107, Cri. P C. is not maintainable and the only course left open to the Magistrate was to draw up a proceeding under Section 146, Cri. P. C Thus, the sole question is whether the proceeding under Section 107, Cri. P. C. is incompetent.
6. In support of his contention, Mr. Misra relied upon a decision reported in AIR 1949 Pat 482, Ramcharan Singh v. Basudeo Dusadh. That was a case where the S. I. of Police submitted a report about an apprehension of a breach of the peace as there was dispute about possession regarding a large area of land between the parties On a consideration of the report the Magistrate drew up a proceeding under Section 107, Cri. P C. against the members of the 2nd party. This proceeding under Section 107, Cri. P. C. continued for some months without any evidence being led. Later on, the Magistrate drew up a proceeding under Section 145, Cri. P. C, in respect of the same land between the same parties. As a result, there were two proceedings pending simultaneously in respect of the same land between the same parties, one under Section 107, Cri. P. C. and the other under Section 145, Cri. P. C. against the members of the 1st party in that case, the 2nd party members moved the Magistrate to drop the proceeding under Section 107, Cri. P. C. against them as also on the ground that a proceeding under Section 146. Cri. P. C in respect of the same dispute was pending The Magistrate did not accede to their request, but stayed the proceeding under Section. 107, Cri. P. C. till the decision of the dispute under Section 145.
In the meantime, an attempt was made by the members of the 2nd party to get the dispute referred to a Board of Arbitration under the Bihar Bakasht Disputes Settlement Act, 1947.
In pursuance of this step, a Magistrate was sent for enquiry who made a report that the landlord and his wife were in possession of the land. Thereafter, on the basis of this report, the Sub Divisional Magistrate dropped the proceeding under Section 145, Cri. P. C. or rather converted it into a proceeding under Section 107, Cri. P. C. against the 2nd party. Then there wag an order that this proceeding under Section 107, Cri. P. C. should be amalgamated with the old proceeding under Section 107, Cri, P. C. The main contention that was raised in that case was on the question if there could be simultaneous proceedings under Sections 145 and 107, Cri. P. C. between the same parties and about the same dispute. It is in that context that the learned Judge held that 'where there is' a dispute concerning land, which is likely to cause an apprehension of a breach of the peace, the proper procedure is to apply Section 145 and decide the question of possession once for all.
It is illegal on the part of the Magistrate to convert the proceeding under Section 145 into a proceeding under Section 107, without coming to a finding on the question of possession after taking evidence in the proceeding under Section 145. He cannot purport to do so on the basis of a report of an enquiry under the Bihar Bakasht Disputes Settlement Act made in the course of proceeding under Section 145. Strictly such report is not evidence in the case. Thus, the case is clearly distinguishable both on facts as also on the legal position. Here, no proceeding was initiated under Section 145, nor were there two simultaneous proceedings under Sections. 107 and 145, Cri. P, C started in respect of the same property. That apart, the main question is when there is an apprehension of breach of the peace concerning the possession of any immovable property, is there any legal bar to a proceeding under Section 107, Cri. P. C. being taken up and whether such a proceeding is without jurisdiction and deserves to be quashed.
7. It is a well settled legal position that there is no bar for the Magistrate to proceed under Section 107, Cri. P. C. when there is a dispute concerning land if it is likely to cause a breach of the peace, even though a proceeding under Section. 145, Cri. P. C. may be more appropriate. A Full Bench of the Calcutta High Court in a case reported in (1911) ILR 39 Cal 150, Emperor v. Abbas, held that 'the fact that there is a dispute concerning land, likely to cause a breach of the peace, does not deprive a Magistrate of jurisdiction under Section 107, Cri. P. C., where he is informed that any person likely to commit a breach of the peace or disturb public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity. Whether after proceeding under Section 107, Cr. P. C., it will be proper for a Magistrate to act under Section 145, Cr. P. C. would depend upon the circumstances of each case as it arises whether likelihood of a breach of the peace continues or not. The competence of the Magistrate to proceed under Section 107, Cr. P. C. against persons not in possession, must depend upon whether as against those persons the conditions specified in the section have been established'.
In a decision of the Patna High Court reported in 36 Cr LJ 257: (AIR 1934 Pat 463), Harihar Singh v. Emperor, Macpherson J. took the view that in certain cases a proceeding under Section 107 should not be quashed just because a proceeding under Section 145 might eventually give better results. Convenience is not necessarily a good criticism. It was further held that the High Courts should be astute not to interfere with the exercise of discretion by a Magistrate as to which of the two proceedings, one under Section 107 or under Section 145, may yield better result so as to avoid a breach of the peace. The Magistrate is necessarily in a better position to say which of the powers is called for by the situation confronting him at the crucial moment. The test is whether the action taken by the Magistrate is not illegal or definitely improper.
In a later decision of the same High Court reported in AIR 1954 Pat 124, Kameswar Singh v. Ramdahin Tewari, the same view was also taken. Sinha J. referred to a large number of decisions including the aforementioned decision reported in AIR 1949 Pat 482 and (1911) ILR 39 Cal 150 and took the view that whether the material before the Magistrate was sufficient to take action under Sec. 107 will have to be decided on the facts of each case. In a dispute relating to land, the proper procedure is to start a proceeding under Section 145, Cr. P C. The jurisdiction of the Magistrate to start a proceeding under Section 107 is not however ousted. If the dispute relates to land and if the Magistrate starts a proceeding under Section 107, that proceeding should be started against both the parties; and in case the Magistrate is of the opinion that the claim of one of the parties to the proceeding is a mere pretence and that in fact there is no dispute bona fide or otherwise, a proceeding under Section 107 can be started against that party. I am in respectful agreement with the view expressed by Sinha J. in this case.
8. In the case before us, the petitioners did not adduce any evidence in support of their possession. On the other hand, the 1st party led evidence in support of his possession and also apprehended assault. Thus, the Magistrate in effect came to the conclusion that the claim of the 2nd party as to possession is a mere pretence and having apprehended a breach of the peace, he bound down the petitioners under Section 107, Cr. P. C. There cannot be any doubt that the materials before the Magistrate are sufficient to make out a case under Section 107, Cr. P. C. against the petitioners. No question of jurisdiction is involved, as he has full jurisdiction to take such action under Section 107, Cr. P. C.
9. Under these circumstances, the order of the learned Additional Sessions Judge must be upheld and the revision dismissed