1. This is a reference by the Addi-tional Sessions Judge, Jhunjhunu, recommending that a composite order of the Sub-Divisional Magistrate, Khetri, under Section 145 as well as under Section 118, Criminal P. C. be set aside.
2. Matadin, who will hereafter be referred to as the first party, filed an application before the Magistrate that he was in possession of acertain field in village Jasrapur, but Berisal Singh ana others, who would hereafter be referred to as the second party, were disturbinghis possession, and it was apprehended that there would be a breach of the peace, the field be, therefore, attached, pending enquiry, and after the decision, possession might be delivered to him. It was also prayed that the second party be bound down under Section 107, Criminal P. C.
3. The learned Magistrate referred the case for a police report, and on the receipt of the police report, he made an order that the second party should show cause why they should not be bound down under Section 107, Criminal P. C. to execute bonds for keeping the peace for one year. This order was made on 26-9-1950. It was also ordered that notices be issued to the second party under Section 145, Criminal P. C. about actual possession.
4. After the second party appeared, the order of 26-9-1950, was neither read over to the second party, nor its substance explained. No written statements were filed as were necessary under Section 145, Criminal P. C. by either party, nor the order required them to do so. The Magistrate, after recording evidence of the parties, made the final order on 30-12-1950, that the second party should deliver possessionof the property to the first party, and that the second party should execute bonds not to disturb the breach of the peace for six months. These bonds were for a sum of Rs. 500/- from each of the second party.
5. The second party went in revision to the Court of the Additional Sessions Judge, Jhunjhunu, and he has made this reference on the following grounds:
1. The Magistrate acted illegally in starting composite proceedings under Sections 107 and 145, Criminal P. C.
2. He was wrong in making the compositeorder under both the sections,
3. The decision of the Magistrate on the point of possession was based on no material, and was perverse.
6. I have heard Mr. P. N. Datt appearing for the second party, who supports the reference, and Mr. O. C. Chatterjee for the first, party, who opposes it. There can be no doubt that the action of the learned Magistrate in starting composite proceedings under Section 107 as well as Section 145 was illegal. If he was satisfied that both the proceedings were necessary, it was his duty to start separate proceedings. The foundation for proceedings under Section 145, Criminal P. C. is a preliminary order under Sub-section (1). The foundation for proceedings under Section 107, Criminal P. C. is an order under Section 112. After an order is made under S, 145 (1), written statements should be filed bythe parties, and then the evidence about the actual possession should be recorded. The Magistrate has to find whether one or the other party was in actual possession on the date of the preliminary order, and if not in possession, whether he was dispossessed within two months from the date before the preliminary order. In proceedings under Section 107, after the order is made under Section 112, it is read over to the person against whom it is made, and if he so desires, the substance thereof has to be explained to him. It is, therefore, necessary that the proceedings under the two sections should be entirely separate, because if there is only one proceeding, there is every likelihood of confusion being made by the Magistrate. This is exactly what has happened in the present case. The order, which was made on 26-9-1950, was, more or less, an order on the lines of an order under Section 112, Criminal P. C. That order had to be read over to the second party, when they appeared in Court. It was, however, not read over to them. The learned Magistrate also forgot that in a case under Section 107, Criminal P. C., it is necessary that it should be proved by evidence that the party who was going to be bound down was doing some overt act from which it could be inferred that a breach of the peace might be committed. The learned Magistrate refers to no such evidence, but only contents himself by saying that by the police report it was proved that there was danger of a breach of the peace from the side of the second party. The order under Section 118 against the second party is, therefore, altogether unwarranted, and I have no hesitation in setting aside that order.
7. Coming to that part of the order which purports to be under Section 145, Criminal P. C., I am also of opinion that without making a proper preliminary order as required by Section 145 (1), Criminal P. C., the learned Magistrate had no authority to proceed further. He did not make any order calling upon the parties to file written statements of their respective claims within a time fixed by him. Nor did he state the grounds of his being satisfied that a dispute likely to cause a breach of the peace existed. The foundation for proceedings under Section 145, Criminal P. C. is also, therefore, lacking. I might have been inclined to send the case back for fresh proceedings in accordance with law, if I were satisfied that it was necessary in the interests of justice. The first party is unquestionably out of possession at present, and the property has been under attachment for over a year. A preliminary order would have to be made now if the proceedings under Section 145 are to be started, and so it would be much more than two months after the property has been attached. It cannot be said definitely from the evidence on the record that even on the date the Magistrate made the composite order, i.e., on 26-9-1950, the first party was in possession of the property or had been dispossessed within two months before it. The proceedings are such that a final decision can be given only by a civil or revenue Court, Under the circumstances, it would be of no use sending the case back for fresh enquiry in accordance with law.
8. The reference is accepted, and the orderof the Magistrate, dated 30-12-1950, is set aside.