Patna High Court
Himmat Mian And Ors. vs Emperor on 14 May, 1918
Equivalent citations: 46IND. CAS.296, AIR 1918 PATNA 500
JUDGMENT
1. This application is directed against an order of the Deputy Magistrate of Dhanbad, dated the 2nd February 1918, directing an enquiry under Section 107 of the Code of Criminal Procedure and dropping proceedings then pending under Section 145 of the Code of Criminal Procedure.
2. On the 23rd July 1917 upon a Police report the Deputy Commissioner drew up proceedings under Section 107 of the Code of Criminal Procedure against the second party petitioner in this Court. On the 4th August 1917 he transferred the case to the file of Mr. S.N. Chatterjee, Deputy Magistrate, for disposal. The case was taken up after some adjournments on the 17th August 1917. On that date Mr. Chatterji, on a perusal of the written statements, and the Police report, thought that the proceeding under Section 107 was not necessary and was not an effective measure to decide the dispute between the parties and permanently prevent a breach of the peace. He, therefore, dropped the proceeding under Section 107, and instituted one under Section 145 of the Code of Criminal Procedure.
3. The case remained on the file of Mr. Chatterji up to the 19th November 1917, when it was transferred to the file of another Deputy Magistrate Mr. Sen. Mr. Sen examined a number of witnesses on behalf of the first party and before he could finish the case he was transferred from the station. On the 2nd of February 1913 the case was then placed on the file of the Deputy Commissioner. The Deputy Commissioner by his order of that date revived the proceedings under Section 107 which had been stopped by Mr. Chatterji on the 17th August 1917, and he further dropped the proceedings under Section 145 initiated by Mr. Chatterjee. The case was then transferred to Mr. Chatterji again for trial. The petitioner 2nd party has now moved this Court against this order of the Deputy Commissioner. Before moving this Court the petitioner had also made an application to the Sessions Judge of Purulia, who by his order of the 19th March 1918 rejected that application. The ground upon which the Deputy Commissioner set aside the order of Mr. Chatterji dropping the proceedings under Section 107 and initiating proceedings under Section 145 is that Mr. Chatterji had no jurisdiction to drop the proceedings under Section 107 which were initiated by the Deputy Commissioner on the 23rd of July 1917. The Deputy Commissioner was of opinion that Mr. Chatterji should have finished his enquiry under Section 107 and passed orders under Sections 118 and 119 of the Code of Criminal Procedure. The case was made over to Mr. Chatterji by the order of the Deputy Commissioner of the 4th August. This order is in the following terms: "To Babu Srinath Chatterji, Deputy Magistrate, for disposal." The order is apparently under Section 192 of the Code of Criminal Procedure, for there is no other section in the Code whereby the Deputy Commissioner was empowered to transfer the case to any Magistrate subordinate to him. It was not the offence that was transferred but the whole case, as the terms of that section as well as the order of the Deputy Commissioner himself would indicate. Mr. Chatterji had, therefore, seisin of the entire case and it was competent for him at any stage of the case to drop the proceedings under Section 107 and to institute another proceeding under Section 145. In his order of the 17th August Mr. Chatterji has set forth in detail the reasons upon which the order was passed. He has come to a definite conclusion upon reading the Police report and the statements of the parties "that there was a definite land dispute", and that the 2nd party against whom the order under Section 107 was in the first instance passed "laid claim to be in possession of the land to which the 1st party attributes the enmity." It is competent for a Magistrate taking cognizance of a case under Section 107 or holding an enquiry under that section to drop the proceedings under that section and to proceed under Section 145. Sections 107, 144 and 145 all give summary jurisdiction to Magistrates to take action in order to prevent a breach of the peace when such a breach is imminent. There is a very thin line of demarcation between these sections. When there is a clear dispute regarding the possession of land, it has been held more than once that the proper section is 145, which not only is more effective in order to prevent a breach of the peace but also is one that causes the least prejudice to the contending parties. Mr. Chatterji who had seisin of the case came to the conclusion that the proper section to proceed under was Section 145. It is impossible to hold that the discretion used by him was improper, nor is it within the province of the Court to come to any decision upon the point. It is sufficient to say that Mr. Chatterji had jurisdiction to take proceedings under Section 143. It is admitted on all hands that there was an imminent danger of a breach of the peace and that some measure under the Code was necessary either under Section 107 or Section 145. Proceedings under Section 145 having been instituted they could only be concluded by the procedure laid down in the Code. The Magistrate to whom the case was made over for enquiry and disposal was Mr. Sen. He went into evidence; the proceedings could only be terminated by a decision upon the evidence as to the possession of the contending parties under Clause 4 of Section 145. Under Clause 5 of that section the Magistrate could drop proceedings upon the only ground mentioned therein that there no longer existed any imminent danger of a breach of the peace. This ground does not at all exist in this case. The Deputy Commissioner had no jurisdiction to revise the order of Mr. Chatterji or that of Mr. Sen under Section 145; such a jurisdiction has been taken away by Section 435 of the present Code of Criminal Procedure. Suppose he had the seisin of the case after the transfer of Mr. Sen, he could not drop the proceedings as the condition laid down in Clause 5 of Section 145, that there was no longer any danger of the breach of the peace, was not fulfilled. In fact in his order the Deputy Commissioner does not say that there no longer existed the necessity of proceedings under Section 145. It was distinctly held in Tara Charan Sarkar v. Bengal Coal Co., Ltd. 4 Ind. Cas. 354 : 13 C.W.N. 125 : 10 Cr. L.J. 560 that the District Magistrate could only quash the proceedings in accordance with the provisions of Clause 5 of Section 145 of the Code of Criminal Procedure on facts being brought to his notice which were sufficient to satisfy him that no dispute likely to cause a breach of the peace existed. The learned Sessions Judge tried to distinguish that case on the strength of the observation made by their Lordships that if their Lordships were satisfied that the Deputy Commissioner had passed the order on a full consideration of all the facts and after hearing the objections of all the parties, they should not have been prepared to interfere with the order of the Deputy Commissioner quashing the proceedings." This remark would only apply to a well-considered order under Clause 5 that there did not exist any longer the necessity of proceedings under Section 145 and could not vest any general power in the Deputy Commissioner or District Magistrate of quashing proceedings under Section 145 on any other ground. The Deputy Commissioner in his order has admitted that there was an imminent danger of a breach of the peace so much so that he himself drew up proceedings under Section 107 and transferred the case to another Magistrate for trial. The order of the Magistrate dropping the proceedings under Section 145 is, therefore, set aside. The Deputy Commissioner has referred to the long duration of the case, namely, six months. That should have been a good reason for directing the expeditious termination of the enquiry under Section 145 which had already proceeded a long way, instead of quashing it and directing a fresh enquiry under Section 107. There, then, remains the order reviving the proceedings under Section 107. It is undesirable that the two proceedings in respect of the same dispute, one under Section 107 and the other under Section 145, should simultaneously proceed [Abinash Chandra Mandal v. Lokenath Gani 44 Ind. Cas. 591 : 19 Cr. L.J. 367]. I venture to think that the final order passed under Section 145 will make it unnecessary to proceed under Section 07 any more.
4. The result is that the order of the Deputy Commissioner, dated the 2nd February 1918, is set aside and it is directed that the enquiry under Section 145 do proceed from the point it had reached before the order of the Deputy Commissioner, dated the 2nd February 1918, was passed and be concluded as quickly as possible.