Nripendra Chandra Saha vs Binoy Krishna Guha and Others

K. Lahiri, J.—This is an application for quashing the proceeding as well as revision in respect of a security proceeding under Chapter VIII of the Code of Criminal Procedure, made by a responsible person, namely, a Commissioner of the Tezpur Municipality.

The first party that is, the opposite party, No. 1 filed an application over six years ego stating that the Petitioner and others forcibly placed wooden posts in a parcel of land said to be of the 1st party as a preparation for constructing a house; when objected to by the first party, the second party were up to assault them. It was alleged that the Petitioner and others were powerful and wicked persons and there was likelihood of a serious breach of peace in view of the conduct of the Petitioner and others, and, accordingly the 1st party prayed for drawing up a proceeding u/s 107 of the Code of Criminal Procedure. The learned Magistrate called for a police report, which clearly shows that there was a long standing dispute over the land between the parties and a house with one room has already been constructed on the land; the construction was made notwithstanding objection raised by the first party. It was also reported by the police that there was likelihood of breach of peace and tranquility and they recommended for drawing up a proceeding u/s 107 of "the Code", whereupon the learned Magistrate issued notices to the Petitioner and others to show cause why they should not execute a bond of Rs. 1000/- each for a period of one year and to furnish surety of the like amount for keeping peace, during the interim period. The other members of the second party appeared and furnished interim surety for keeping peace during the internal period. Later, the Petitioner appeared, executed a surety bond for the interim period pending the enquiry and showed cause. The Petitioner contended that proceeding was incompetent and prayed to the Court to withdraw and/or recall the orders. However, the learned Magistrate instead of disposing of the said application proceeded to enquire into the matter. Whereupon the Petitioner came up to this Court for quashing the proceedings.

The incident happened as far back in 1977 and we have stepped in 1984. The necessity for the continuance of the security proceedings is long over. Perhaps the parties themselves have forgotten their differences and disputes. It is not a stray observation or a mere wishful thinking, but a rank reality which appears from the very fact that went the first party, notwithstanding receipt of notice of this case, did not appear to contest the proceedings. It shows that due to elapse of time the necessity of the proceeding has lost its importance and necessity. Even the first party does not desire to proceed on with the security proceeding.

Further, the dispute was over possession of the land where upon, it was alleged that the members of the second party were constructing the house. Before drawal of the proceedings the house had been constructed. No reason has been attributed why the first party did not proceed in the Civil Court and injunct the second party. Nothing is there to show why a proceeding u/s 145 of "the Code" was not taken.

Be that as it may, the crucial question is whether disturbance of private tranquility or breach of private peace contra public peace and public tranquility can be the foundation for drawing up a proceeding u/s 107 of "the Code". Sections 106 and 107 of "the Code" are counterpart of the same policy. The first applies when by reason of the conviction of a person, his past conduct leads to an apprehension for the future and the second applies when the Magistrate on information is of the opinion that unless prevented from so acting a person is likely to act to the detriment of public tranquility vide, Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and Others, The Magistrate acquires jurisdiction to draw up a proceeding u/s 107 of the Code on being satisfied that a person is likely to commit a breach of the peace or disturb the public tranquility or (ii) to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquility. The preventive measure, which is surely not a punitive one, is to maintain public tranquility and public peace and cannot be made as a handle in case of a private dispute between individuals where there is no material of disturbance to public tranquility or public peace. In the instant case it is apparent that there is a dispute between two contesting parties and the members of the public were not effected by the acts or action or conduct of the parties. It arose out of a long standing dispute and as such, there was no question of any imminent breach of tranquility or peace. The provision of Section 107 can be used when there is an apprehension of sudden breach of public tranquility or public place.

For the foregoing reasons, I hold that it will amount to abuse of the process of the Court if the proceedings are allowed to be continued. To secure the ends of justice the proceeding are quashed.

In the result, the petition is accepted and the proceedings are quashed.