Deoballam Singh and Another vs Gorakhnath Singh

Agarwala, J.—This is an application against an order calling upon the petitioner to show cause why a proceeding u/s 107, Criminal P.C., should not be drawn up against him. The material facts are that in August 1945, the opposite party filed a petition before the Sub-Divisional Magistrate alleging that the petitioners were forcibly preventing him from cultivating certain land, and that unless action was taken at once, breach of the peace might occur. The police also submitted a report suggesting action u/s 107. The police report was impugned by the petitioners in a petition which they filed in the Court of the Magistrate. The Magistrate thereupon recorded the following order on 1st October: "Let Rai Sahib D.N. Singh hold an enquiry and report if action u/s 107, Criminal P.C., is necessary. Give dates and time and names of persons doing overt acts and going on the land." Rai Sahib D.N. Singh made a report to the Magistrate, and, thereafter, on 7-1-1945, the Magistrate directed a proceeding u/s 107 to be drawn up.

Section 107 is one of the sections of the Code of Criminal Procedure designed to enable public officers to take action to prevent the commission of offences. They confer wide and unusual powers on the officers concerned. As the exercise of these powers necessarily results in interference with the liberty of the subject, the powers must be exercised strictly in accordance with law. Section 107 empowers certain Magistrate specified in the section to require a person to show cause why he should not be ordered to execute a bond, with or without sureties, for keeping the peace for such period not exceeding one year as the Magistrate thinks fit on receipt of information that such person is likely to commit a breach of the peace or disturb the public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace, or disturb the public tranquillity, if in the opinion of the Magistrate there is sufficient ground for proceeding. The sine qua non for the institution of a proceeding under this section is that the Magistrate shall be of opinion that there is sufficient ground for proceeding. The Legislature has been careful to restrict the exercise of the power conferred by Section 107 to certain Magistrate specified in the section. It is only when such a Magistrate is of opinion that there is sufficient ground for proceeding that action can be taken. Now, it is clear from a perusal of the order-sheet in this case that on 1st October the Sub-Divisional Magistrate was not of opinion that there was sufficient ground for proceeding u/s 107. It must be remembered that he had before him the petition of the opposite party and the police report; and yet he did not consider these documents afforded a sufficient basis for him to form an opinion that there was sufficient ground for proceeding; otherwise there was no occasion for him to direct Rai Sahib D.N. Singh to make an enquiry and report whether action was necessary. The procedure adopted was, in my opinion, entirely wrong. I do not mean to suggest that it may not have been perfectly proper for the Sub-Divisional Magistrate to direct the Rai Sahib to make on enquiry with regard to the fact; but it was entirely improper for the Sub-Divisional Magistrate to direct the Rai Sahib to make a report as to whether action u/s 107 was necessary. It is not the opinion of the Rai Sahib that could form the basis for a proceeding u/s 107, the Legislature having provided that it is the opinion of the Sub-Divisional Magistrate that sufficient grounds existed for the institution of a proceeding that determines the right to proceed. It appears that such facts as were observed or ascertained by the Rai Sahib were not such as to encourage the Sub-Divisional Magistrate in the belief that a proceeding was necessary, for he appears to have been thoroughly dissatisfied with the Rai Sahib''s report and does not treat it as providing him with materials for the formation of an opinion that a proceeding u/s 107 was necessary. Nor were there any materials Other than the petition of the opposite party of 28th August and the police report which afforded material on which the Sub-Divisional Magistrate could base his opinion. As I have already shown, the Sub-Divisional Magistrate obviously did not consider the opposite party''s petition and the police report sufficient when he decided to direct the Rai Sahib to make an enquiry and report. In my opinion, therefore, the Sub-Divisional Magistrate''s procedure in the present instance was misconceived, and the order must be set aside.

Should the Sub-Divisional Magistrate have occasion to come to the conclusion that the dispute between the petitioners and the opposite party is likely to occasion a breach of the peace in the future, he will, of course, remember that, if the dispute relates to the possession of immovable property, the proper procedure to be adopted is that described in Section 145, Criminal Procedure Code.