1. This is a reference made by the learned Sessions Judge, Ajnier, recommending that an order passed by a First Class Magistrate Under Section 145, Criminal P.C. should be modified. Akbar Khan made a report to the police on 2nd June 1949 to the effect: that Rama and Dunga with 40 or to persons went to Akbar Khan's land and ploughed it. Further they threatened to take his life. The Police made two reports against the two parties under SSection 107 and 145, Criminal P.C. Notices were therefore issued to the two parties for aotion under Section 107 and 145, Criminal P.C. The land in dispute1 was attached. These conneoted cases were disposed of by the learned Magistrate by one judgment dated 18th Deoember 1949. He held that Akbar Khan was in possession on 2nd June 1949t The Court therefore passed an order putting Akbar Khan in possession and restraining the second party from interfering with the possession of the first party. As regards the notices issued Under Section 112, Criminal P.C., the Court found that no aotion Under Section 107 was needed. Thenotiees under 3. 112, Criminal P.C., were therefore discharged. Rama and Dunga of the second party filed a revision application before the learned Sessions Judge urging that the learned Magistrate had no jurisdiction to pass an order of injunction against the second party after arriving at a finding that there was no apprehension of a breach of the peace. This contention was accepted by the learned Sessions Judge. He has therefore made this reference re-commending that an order should be passed under Sub-section (5) of S. US, Criminal P.C., cancelling the previous order of the Magistrate and staying all further proceedings in the case. I have heard the learned Counsel for Kama and. Dunga and also the learned Public Prosecutor.
2. The record shows that the second party did not take a straightforward stand. It ap. pears that Rama and Dunga appeared before the police and reported that they apprehended danger to their lives and asserted their posses. Bion. On 13th June 1949 Rama and Dunga knell. an application to the Court requesting to the attachment of the land in dispute. In para. 2 of that application the second party stated:
The dispute is regarding the agricultural land measuring six bigbas.... One Akbar Khan wants to take possession of the land while aoaused allege that they are in possession of the fruit land.
This paragraph shows that there was some parcel of land for which each party was claiming possession. But when the case came before the Court for enquiry, Rama and Dunga took up the position that they were not in physical possession of the land, they never tried to interfere with Akbar Khan's possession and the possession rests with 29 persons of Parbatpura.
3. The learned Magistrate framed three points for consideration. Point no. i was about pos. session on 2nd June 1949. Point no. 2 was about suitable action Under Section 145, Criminal P.C. Point No. 8 related to action Under Section107i Criminal P.C. On point NO. 1 the Court de-Bided in Akbar Khan's favour. So under point Mo. 2 the Court proceeded to deliver possession to Akbar Khan, restraining the second party from interfering with Akbar Khan's possession.
4. Then the learned Magistrate took up the 3rd point for consideration. Akbar Khan stated before the Court that he did not apprehend any breach of peace from the second party. Akbar Khan did not notice the second party ia the incident of 2nd June 1949. For these reasons the Court observed that there was no longer ap. prehension of a breach of the peace and notices Under Section 112, Criminal P.C., should be discharged. It is to be noted that these observations were made in the discussion of point No. 3. The question of apprehension of breach of peace was not discussed under point no. 2. All this confusion has arisen because the Court consolidated the cases Under SectionSection 107 and 145, Criminal P.C. Strictly speaking, there should have been three separate enquiries-two cases Under Section 107, Criminal P.C. and a third case Under Section 146, Criminal P.C. There can be degrees of danger. A particular situation may not warrant action Under Section 107, Criminal P.C. although action may be needed Under Section 145, Criminal P.C. The proceedings Under Section 145, Criminal P.C., need not be dropped simply because the Court decided to discharge the notices Under Section 112, Criminal P.C.
5. Under point No. 1 the learned Magistrate found that some persons invaded the possession of Akbar Khan, although he was not actually . dispossessed as a result of the incident and he continued to be in possession after the incident.
6. In Mt. Jawahar-un-Nisa v. Yumf Ali, 1940 A. M. L. J. 21, the Magistrate passed an order granting possession to one party in spite of a finding that there was no likelihood of a breach of the peace. It was held by this Court that the object of Section 145 is to preserve public tranquility. The gentian cannot be brought into forgo at all until the Magistrate declares in writing that in his opinion a dispute exists which is likely to cause a breach of the peace. Other High Courts have also held that action Under Section 145, Criminal P.C., is not justified unless there is apprehension of a breach of the peace.
7. Preliminary notices were is3ued to the parties under Section 145, Criminal P.C. oalling upon them to file written statements. In those notices it was mentioned that there was an-prehension of a breach of the pease. This question was not further discussed under point NO, 2 of the judgment. The question Came up for consideration under point no. 8. The learned Counsel for the second party has no objection to Akbar Khan's recovery of possession. But the learned Counsel objects to that part of the order which contains an injunction against the second party. If the second party has absolutely no interest in the land in dispute it ia difficult to see why the second party should make so much fuaa about this order of injunction. At the earlier stage of the prooeedings the second party claimed possession both before the Magistrate and the police. Subsequently the second party took up a different stand. It is true that Akbar Khan went to the length of saying that he did not apprehend danger from the second party. But it is to be remembered that Akbar Khan was himself being prosecuted Under Section 107, Criminal P.C. Experience shows that under such circumstances a party frequently says that there is no longer danger from the opposite party. Such a statement should not be readily accepted. It was conceded on behalf of the second party that there was litigation between the parties about neighbouring land for some time. The second party itself complained of danger from first party. It cannot definitely be said that the danger is no longer there. Although the procedure adopted by the learned Magistrate was irregular the circumstances justify action Under Section 143, Criminal P.C. The order dated 18th December 1949 may therefore be allowed to stand. The reference ia rejected.