Shama Charan and Others vs Emperor

Sen, J.—The petitioners four in number are amlas of Gidhaur estate against whom proceedings u/s 107, Cr. P.C. have been drawn up by the Sub-divisional Officer of Nawadah. They pray that the proceedings may be quashed or in the alternative, for a transfer of the case to the file of some other Magistrate.

The circumstances under which they apply are briefly as follows:

On the 30th July, 1924, one Gursahay applied to the Maharaja of Gidhaur for a lease of village Suarkole Dumarkole in Rajauli police station. On the same date the Maharaja gave a hukumnama to Gursahay in the name of the amlas of the village. It is said that the hukumnama contained a condition to the effect that if a patta were not executed within a fortnight then the hukumnama, would be deemed inoperative. A fortnight having elapsed notice was then given to Gursahay to the effect that the mouza would be settled with another parson. Thereafter one Dasrath Ram applied for "thika and a hukumnama was issued in his favour. Afterwards Dasrath took possession and Gursahay made a verbal complaint to the Sub-Divisional Officer of Nawadah and the Sub-Divisional Officer made an enquiry on the 22nd September 1924. On the 26th September final orders were passed in a proceeding u/s 144 drawn up by the Sub-Divisional Officer where by he purported to come to a finding that Gursahay had been in possession for two months prior thereto, and he issued notice u/s 144 against Dasrath, Mahabir and some others. It is to be noted that the servants of the Maharaja were not parties to these proceedings. It is said that Dasrath then relinquished his ticca and took back his money: and the petitioners on behalf of Gidhaur estate took possession of the mouza. In January last Gursahay filed a further petition alleging that he was being wrongfully dispossessed by the Maharaja''s men and praying for proceedings u/s 107, Cr. P.C. On the 4th of February, 1925, the Sub-Divisional Officer issued notices calling upon the petitioners and some others to show cause why proceedings u/s 107 of the Code of Criminal Procedure should not be drawn up against them. On the 4th March, 1925, the proceedings were amended finally by including two more names. It appears that an application was then made before the learned District Magistrate praying either for a transfer of the proceedings from the file of the Sub-Divisional Officer to that of some other Magistrate or in the alternative, that the proceedings might be quashed or proceedings drawn up u/s 145, Cr. P.C. instead. The learned District Magistrate thought that it was doubtful whether he had power to quash the proceedings or to order proceedings to be drawn up u/s 115; and he refused the application for transfer.

On the question of transfer the learned Counsel appearing for the petitioners has not laid much stress, nor is there much to be said in favour of it. He has addressed his arguments in the main on the subject of quashing of the proceedings. It is urged that unless and until the Court is in a position to say that the party sought to be bound down is clearly in the wrong, Section 107 of the Code of Criminal Procedure should not be resorted to especially when there is a bona fide dispute on the question of possession. Reliance is placed on numerous reported cases out of which the following may be mentioned:--Balajit Singh v. Bhoju Ghose (1908) 35 Cal. 117, Dolegobind Chowdhry v. Dhanu Khan (1898) 25 Cal. 559 , and Shebalak Singh Vs. Kamabuddin Mandal and Others, . Upon the authorities the principle is clear that the provisions of Section 145 are mandatory and while it is discretionary with the Magistrate to draw up proceedings u/s 107, of the Code of Criminal Procedure the proper course when there is bona fide dispute as to lands is to proceed u/s 145. Otherwise, the effect would be to bind down one of the parties only to the dispute without any adjudication upon the question as to which of the two parties is in possession. The other side relies on the case of Sheoraj Roy v. Chatter Roy (1905) 32 Cal. 966, King-Emperor v. Basiruddin Mollah 7 C.W.N. 746 . The facts and circumstances of these two cases are clearly distinguishable from those of the present. The law on the subject was fully discussed in Shebalak Singh Vs. Kamabuddin Mandal and Others, and it was laid down there that where one party is clearly in the wrong and threatens to disturb the rights of another who is in actual possession of the land, Section 145 has no application. This is more than what can be said in the present case. The facts of the case, to my mind, do not show that one party is clearly in the wrong but, on the contrary, that there are circumstances which point to a bona fide dispute as to possession that should be adjudicated upon. In the circumstances, I think, the proceedings u/s 107 should be quashed I therefore order accordingly.