S. Murtaza Fazl Ali, J.
1. This is an application against the orders passed by the District Magistrate Srinagar initiating proceedings under Sections 107, 112 and 117 of the Code of Criminal Procedure against the petitioners.
2. It appears that on 24-7-1965, the petitioners filed an application before the District Magistrate Srinagar intimating to him that the non-applicants were trying to build a house on what the petitioners alleged to be a common path-way. On a date later i.e. on 25-7-1965 the non-applicants filed a complaint before the District Magistrate Srinagar that there was required by the statute, has not been expressly followed.
6. Another serious infirmity from which the order of the District Magistrate Srinagar initiating proceedings under Sections 107,112 and 117 Cr. P.C. suffers is the fact that this was not at all a case in which the Magistrate should have proceeded ex parte against the petitioners alone, even under Section 107 Cr. P.C. It is well settled that where there is a dispute of land, water or way the Magistrate should first proceed under Sections 145 and 147 Cr. P.C. or if it decides to proceed under Section 107, Cr. P.C. then the proceedings should be instituted against both the parties so that one party may not get unfair advantage over the other. Moreover, in the instant case, except for general and vague allegations, there was no evidence of any overt act having been committed by the petitioners against the non-applicants, so as to warrant the District Magistrate Srinagar to institute proceedings under Section 107 Cr. P.C. Furthermore, the dispute as would appear from the police report and other materials on the record is one relating to pathway and. therefore, the Magistrate should have drawn proceedings, if any, under Section 147 Cr. P.C.
7. For these reasons, therefore, the application is allowed and the proceedings start-ed against the petitioners are quashed. It would, however, be open to the District Magistrate to initiate proceedings under Section 145 or 147 Cr. P.C. if he finds that an apprehension of breach of the peace still exists.
8. The Rule is accordingly made absolute.