1. This is a reference under Section 438 of the Code of Criminal Procedure by the Additional Sessions Judge Bundi recommending that the composite order of the Magistrate 1st Class Patna in Bundi District be quashed. A complaint was made by the opposite party Raj Mal under Sections 145 and 107 of the Code of Criminal procedure that the field known as Bambulwala No. 620 situated in Choti Godoll was in his ownership and actual possession but the applicant Bhairon Bux and others prevented him from ploughing and sowing the field. The applicants were using force and there was apprehension of breach of peace. The possession of the opposite party be declared and retained over the field and the applicants be ordered to furnish security for keeping peace.
2. The learned Magistrate sent this application of the opposite party to police for report and on receipt of the report he made an order that the case be registered under Sections 107 and 145 of the Code of Criminal Procedure and the accused (Bhairon Bux and others) be given notice to show cause why they should not be called upon to furnish two sureties each in the sum of Rs. 350/- each and execute personal bonds in the amount of Rs. 700/- for keeping the peace for one year and not to trespass upon the field during the said period.
3. After recording the evidence of the parties the learned Magistrate made the final order on the 7th January, 1950 which when translated into English runs as follows :
'1. It is declared that Raj Mal shall retain possession over the field Bamtauwala No. 620 area 36 Bighas and 4 Biswas situated in village Choti Godoli till such time as he is evicted in due course.
2. The accused shall not interfere with the possession of the applicant (Raj Mal).
3. The accused shall at once deliver the, possession of the field in dispute to the applicant (Raj Mal) otherwise the applicant shall be delivered possession through Court.
4. The accused Bhairon Bux and Sukh Dev shall furnish two sureties each in the sum of Rs. 250/- each for keeping the peace for one year and for not trespassing upon the field in dispute for that period and for not quarrelling or breaking the peace, in case of non-compliance they will have to undergo one year's simple imprisonment.'
4. The learned Sessions Judge has held that first of all such composite orders are illegal; secondly he says that there was no preliminary order required by Section 145(1) of the Criminal Code of Procedure and in the absence of it the Magistrate had no jurisdiction under Section 145.
5. The learned Counsel for the applicant has adopted the argument given by the Learned Sessions Judge in his order of reference and has relied upon the rulings reported in 'LAKHPAT v. MT. MAHRANA' AIR 1947 oudh 159 and 'FARID IMMABUX V. PIRU KOURO', AIR (1) 1914 Sind 8. In the Oudh ruling it has been held that under Section 145 it is mandatory upon the Magistrate to record the grounds of his belief. If without giving any reasons and without even stating that he is satisfied that there is any apprehension of a breach of the peace the Magistrate passes an order under Section 145 (1) the order is without jurisdiction. In Sind Ruling it was held that it is very undesirable to combine proceedings under Section 107 with proceedings under Section 145 against, both opposing parties in the same proceedings under Section 107.
6. There can be no doubt that in matters relating to possession, the Magistrate has jurisdiction only when there is a danger of the breach of peace. It has been provided in Section 145(1) that whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class is satisfied that a dispute likely to cause a breach of the peace exists concerning any land or water etc. he shall make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in persons or by pleader within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. On a perusal of the file I find that there is absolutely no order whatsoever to this effect. In the absence of such an order the Learned Magistrate had no jurisdiction to proceed under Section 145. The essence of the proceedings under Section 145 is preliminary order under Sub-section 1. When it is wanting the proceedings are illegal. The order of the Magistrate so far as it concerns the possession of the field is therefore, likely to be set aside and is quashed.
7. So far as that portion of the order is concerned which relates to the furnishing of the securities, such order could not be made under Section 145. If the Magistrate wanted to proceed under Section 107, he ought to have taken separate proceedings under the said section. The procedure in case of dispute relating to immovable property under Section 145 is quite different from the procedure in security proceedings under Section 107. Both the proceedings should not, therefore, be combined and if the Magistrate considers it necessary to proceed both under Section 107 as well as Section 145 he should start separate proceedings according to law.
8. Reference is accepted, the order of thelearned Magistrate Patna dated the 7th January,1950 is set aside and he is directed to proceed inaccordance with law if he still thinks that proceedings are necessary against the applicant BhaironBux and others.