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Case Number

Criminal Revn. No. 14 of 1951

Attorney(S)

Mansha Ram

Judges

Kailash Wanchoo
Mr. K.L. Bapna

Acts

Cr PC (Amendment) Act 1923 (XVIII (18) of 1923).
Sub-s. (6) of Section 145
S. 146 Sub-Section (1)

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Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

This revision originated from a reference by the Sessions Judge of Tonk arising out of proceedings under Sections 145 and 107 of the Criminal Procedure Code (Cr PC). The matter began on two police reports from Thana Kili — one under Section 145 and the other under Section 107 — concerning a dispute between two parties over immovable property divided into two "Baras."

The learned Magistrate combined what should have been separate proceedings into a single mixed proceeding (where, according to the opinion, there should have been three distinct proceedings: one under Section 145 and separate Section 107 proceedings against each party). The Magistrate issued notice under Section 145 and also asked the parties to show cause why security should not be taken, but the notice under Section 112 was apparently not read to the parties. For one Bara the Magistrate found in favour of one party and passed an order under Section 145. For the second Bara the Magistrate found both parties to be in joint possession, directed them to have their rights determined by a civil court within three months, and ordered them to execute bonds to keep the peace for three months, on the ground of a likely breach of the peace.

The learned single Judge referred three specific legal questions to a Division Bench for decision; these questions relate to (1) the competence of a Magistrate to initiate Sections 107 and 145 proceedings simultaneously, (2) the nature of the order when a Magistrate finds joint possession after enquiry under Section 145, and (3) whether the Magistrate can require security under Section 107 where joint possession is found.

Legal Issues Presented

Whether a Magistrate was competent to initiate proceedings under Sections 107 and 145 of the Cr PC simultaneously.
If the Magistrate finds after enquiry under Section 145 of the Cr PC that the property in dispute was in joint possession of the parties, then:
1. what should be the nature of the order if one would be passed under Section 145 of the Cr PC; or
2. should the Magistrate proceed to pass an order under Section 146 of the Cr PC?
If the Magistrate has made the finding in (2) above and apprehends a breach of the peace while each party attempts to oust the other, was he competent to require security to keep the peace under Section 107 of the Cr PC in:
1. cases where proceedings were initiated under both Sections 145 and 107 of the Cr PC; and
2. cases where proceedings were taken exclusively under Section 145 of the Cr PC?

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Emperor v. Abbas, 39 Cal. 150 (Five-Judges' Bench, Calcutta High Court)	Held that there is no conflict between Sections 107 and 145 of the Cr PC; a dispute concerning land likely to cause breach of the peace does not deprive a Magistrate of jurisdiction under Section 107 where he is informed that any person is likely to commit a breach of the peace or disturb public tranquillity.	The court relied on this authority to support the proposition that a Magistrate may, in his discretion, proceed simultaneously under Sections 145 and 107 in suitable cases; the opinion treats this precedent as aligning with the legislature's later amendment and as persuasive authority for permitting concurrent action (subject to separate proceedings).
Chiranji Lal v. Mahadeo Prasad, A.I.R. 1932 All. 683	Held (per Bennet J.) that where two joint owners are in joint possession, the Magistrate could not decide which of them was in exclusive possession and therefore Section 146 would apply (permitting attachment until rights are determined).	The court expressly considered this view but rejected it. The Bench stated that a finding of joint possession cannot be equated with a finding that none of the parties was in possession or that the Magistrate was unable to satisfy himself who was in possession; therefore the Court declined to follow the Chiranji Lal decision and held that Section 146 does not apply to cases of joint actual possession.

Court's Reasoning and Analysis

The Court addressed each referred question in turn and applied statutory text, the legislative amendment, and precedent where cited:

Regarding competence to initiate Sections 107 and 145 proceedings simultaneously (Question 1), the Court observed that any earlier uncertainty was resolved by the Cr PC (Amendment) Act 1923 which introduced sub-section (10) to Section 145. The sub-section states: "Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under S. 107." The Court treated this statutory amendment together with the Calcutta High Court five-judge decision in Emperor v. Abbas as authorizing a Magistrate, in his discretion and depending on the circumstances, to proceed simultaneously under Sections 145 and 107. However, the Court emphasized that even where action is taken simultaneously, there must be separate proceedings for each statutory head; the practice of combining them into one proceeding (as occurred here) was condemned as incorrect.
On what order should be made when, after enquiry under Section 145, the Magistrate finds joint possession (Question 2), the Court proceeded from the text of Sub-section (6) of Section 145 and Section 146(1).
- It stated that where parties are in joint actual possession on the date of the order, no order under Section 145 declaring exclusive entitlement can be made in favour of any party (consistent with the settled view of the High Courts).
- Section 146(1) permits attachment only where the Magistrate decides that none of the parties was in such possession or is unable to satisfy himself as to which of them was then in possession.
- The Court analyzed whether a finding of joint possession fits either scenario. It concluded that joint possession is neither a finding that "none of the parties was in possession" nor a situation where the Magistrate is "unable to satisfy himself as to which of them was in possession." Therefore, Section 146 does not apply to joint possession.
- The Court considered the contrary view in Chiranji Lal v. Mahadeo Prasad but rejected it, saying with respect it could not agree with Bennet J.'s approach.
- Accordingly, the Court's answers were that where joint actual possession is found after enquiry, the Magistrate should drop (terminate) proceedings under Section 145, and he cannot proceed to make an attachment order under Section 146 in such circumstances.
On competency to require security under Section 107 when the Magistrate apprehends breach of the peace after finding joint possession (Question 3), the Court reasoned as follows:
- Proceedings under Sections 145 and 107 should be separate in form. If they are separate, and the Magistrate drops Section 145 proceedings, he may pass such order as he thinks fit in the separate Section 107 proceedings.
- If the Magistrate has improperly mixed the two (as in the present case), he can drop the mixed proceedings and by a separate order commence proper Section 107 proceedings.
- Where proceedings have been taken exclusively under Section 145, the Magistrate cannot in those same proceedings pass an order under Section 107; instead he must drop the Section 145 proceedings and, if satisfied of necessity, initiate fresh proceedings under Section 107 and proceed according to law.
Application of these principles to the facts: The Sessions Judge's referral concerning Bara No. 2 (the finding of joint possession) was accepted because an order under Section 145 cannot declare joint possession. The Court also accepted the Sessions Judge's view that the Magistrate could not validly bind the parties under Section 107 where the Magistrate had effectively taken no proper Section 107 proceedings: there was no order under Section 112 on the record and no compliance with Section 113. The proceedings culminating in the order under Section 118 read with Section 107 were therefore held to be irregular and were set aside.

Holding and Implications

CORE HOLDING: The Court accepted the reference and made the following principal rulings:

On simultaneous initiation: A Magistrate is competent to initiate proceedings under Sections 107 and 145 of the Cr PC simultaneously in suitable cases (this competence is supported by Sub-section (10) of Section 145 as introduced by the Cr PC (Amendment) Act 1923 and the decision in Emperor v. Abbas). However, even when both heads are pursued, separate proceedings must be maintained for each statutory provision; combining them into a single mixed proceeding is incorrect.
On joint possession after enquiry under Section 145: If the Magistrate finds that the parties are in joint actual possession, he should drop proceedings under Section 145 and cannot proceed to attach the property under Section 146(1). An order under Section 145 cannot declare joint possession in favour of both parties.
On requiring security under Section 107: Where there is an apprehension of breach of the peace, the Magistrate may require security under Section 107 only by taking proper Section 107 proceedings — either those already properly started or by commencing fresh Section 107 proceedings after dropping Section 145. The Magistrate cannot, in proceedings exclusively instituted under Section 145, validly pass an order under Section 107 without commencing distinct Section 107 proceedings and complying with the relevant provisions (including Section 112 and Section 113 procedures).
Case-specific outcome: The Magistrate's order under Section 145 purporting to declare joint possession of Bara No. 2 was set aside. The order under Section 107 (including orders under Section 118 read with Section 107) was also set aside as irregular because the required procedural steps (e.g., an order under Section 112 and compliance with Section 113) were not on the record.

Implications for the parties: The direct effect was that the Magistrate's orders referenced above were vacated; the Court clarified the correct statutory approach to simultaneous proceedings and the consequences of a finding of joint possession. The opinion resolved the referred questions of law for application in similar factual scenarios as presented before the court.

Disposition: Reference accepted; the challenged orders (the Section 145 declaration of joint possession and the Section 107 bind-over orders in the irregular proceedings) were set aside.

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Nahar Singh v. The State

1. This revision has arisen out of a reference by the Ses. J. of Tonk in a revision before him out of proceedings under Sections 145 and 107 of the Cr PC. When the matter came up before the learned single Judge of this Court, he referred the following three points for decision by a Division Bench:

(1) “Whether a Magistrate was competent to initiate proceedings under Sections 107 & 145 of the Cr PC simultaneously;

(2) In case the Magistrate finds after enquiry under Section 145 of the Cr PC that the property in dispute was in joint possession of the parties then (a) what should be the nature of the order if one would be passed under Section 145 of the Cr PC or (b) should the Magistrate proceed to pass an order under Section 146 of the Cr PC, &

(3) In case the finding of the Magistrate was under cl. (2) above, & he apprehended a breach of peace between the parties while each attempted to oust the other, was he competent to ask for security to keep the peace under Section 107 of the Cr PC where (a) the proceedings were initiated under Section 145 & 107 of the Cr PC & (b) where the proceedings were taken exclusively under Section 145 of the Cr PC.

2. A brief reference to the facts of this case may be given at the outset. The case started on two reports of the police of Thana Kili — one under S. 145 & the other under S. 107 — as the dispute between two parties was about certain immovable property. The report under S. 107 was against both parties. The Magistrate who tried the case instead of taking separate proceedings — & there should have been three proceedings, namely, one under S. 145 & another under S. 107 against one party & the third under S. 107 against the second party — mixed up everything in one proceeding. It appears that the learned Magistrate gave notice to the parties under S. 145 & also asked them to show cause why security should not be taken from them. But it seems that the notice under Section 112 of the Cr PC was not read over to the parties when they appeared in court. The case related to two Baras. So far as one Bara is concerned, the Magistrate found in favour of one party & passed an order under S. 145. So far as the second Bara is concerned, the Magistrate found that both parties were jointly in possession & directed them to get their rights determined by a civil Court within three months. He also held that there was a likelihood of a breach of the peace &, therefore, ordered the parties to execute bonds to keep the peace for a period of three months. We now come immediately to the three questions that have been put to us for reply. The first question is whether a Magistrate is competent to initiate proceedings under Sections 107 & 145 of the Cr PC simultaneously. Whatever may have been the uncertainty of the law in this connection, the matter is set at rest by the introduction of sub-S. (10) in Section 145 by the legislature by the Cr PC (Amendment) Act 1923 (XVIII (18) of 1923). This Sub-s. reads as follows:

“Nothing in this section snail be deemed to be in derogation of the powers of the Magistrate to proceed under S. 107.”

3. This was in accordance with the view taken by a five Judges' Bench of the Calcutta High Court in ‘Emperor v. Abbas*’, 39 Cal. 150, where it was held: “There is no conflict between Sections 107 & 145 of the Cr PC & the fact that there is a dispute concerning land, likely to cause a breach of the peace, does not deprive a Magistrate of jurisdiction under Section 107 of the Cr PC, where he is informed that any person is likely to commit a breach of the peace or disturb public tranquillity, or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity.”

4. It is, therefore, within the discretion of a Magistrate to proceed simultaneously or not under Sections 145, 107 of the Cr PC in cases in which there is a dispute between two parties about immovable property. As pointed out in the Calcutta case, referred to above, it will depend upon the circumstances of each case whether action should be taken simultaneously or not. We should, however, make it clear that even where action is taken simultaneously, there should be two separate proceedings — one under S. 145 & the other under Section 107 of the Cr PC & the procedure adopted by the Magistrate in this case of having one proceeding was not right. Our answer, therefore, to this question is that a Magistrate is competent to initiate proceedings under Sections 107 & 145 of the Cr PC simultaneously in suitable cases.

5. We now turn to the second question. In this question it is presumed that the Magistrate after enquiry under S. 145 finds that the property in dispute is in the joint possession of the parties. The facts in the present case to which we have referred also show that one of the findings of the Magistrate is that one of the Baras is in the joint possession of the parties. We are then asked to reply what order should be passed by a Magistrate in such circumstances. The question suggests two possibilities: (1) Whether the order should be under Section 145 of the Cr PC & if so what, or (2) Whether the order should be under Section 146 of the Cr PC It is not necessary for us to quote authorities so far as the first part of the question is concerned for all the High Courts are agreed that where a court comes to the conclusion that the parties before it are in joint possession of the property in dispute on the date of the order no order under S. 145 in favour of any party declaring him to be entitled to possession until evicted in due course of law & forbidding all disturbances of such possession until such eviction, can be passed under Sub-s. (6) of Section 145 of the Cr PC. The question then arises is whether an order should be passed dismissing the case under S. 145 or the Magistrate should proceed under S. 146 Sub-Section (1) of the Cr PC. That Sub-s. reads as follows:

“If the Magistrate decides that none of the parties was then in such possession, or is unable to satisfy himself as to which of them was then in such possession of the subject of dispute, he may attach it until a competent Court has determined the rights of the parties thereto, or the person entitled to possession thereof.”

6. Under that Sub-s., a Magistrate can attach the property in either of two cases (1) when he finds that none of the parties before him is in such possession or (2) when he is unable to decide which of the parties before him is in possession of the subject-matter of dispute. But we must make it clear that if, while finding that none of the parties was in possession of the property, the Magistrate also comes to a conclusion that a third person who is no party to the proceeding is in actual possession, he should not disturb the possession of that third person by attaching the property. The question, however, still remains whether in a case where the Magistrate is of the opinion that both the parties before him are in joint possession of the property, it can be said that he has decided that none of the parties was in such possession or is unable to satisfy himself as to which of them was in possession. It is clear that where the Magistrate holds that both parties are in joint possession, it is not a case where he can be said to have decided that none of them were in possession. Is it then a case in which it can be said that he is unable to satisfy himself as to which of them was in possession? The answer to our mind is obviously in the negative. Where the Magistrate holds that both parties are in possession, it cannot, in our opinion, be said that he was unable to satisfy himself as to which of the parties was in possession. There is only one case-which we have been able to find which takes a different view namely ‘Chiranji Lal v. Mahadeo Prasad’, A.I.R (19) 1932 All. 683. In that case Bennet J. held that if there were two joint owners in possession jointly it was a case where the Magistrate could not decide which of them was in exclusive possession. He, therefore, went on to hold that in such a case S. 146 would apply. With air respects, we are unable to agree with this view. Therefore, our answer to question 2(a) is that where a Magistrate finds after enquiry that the parties were in joint actual possession of the property in dispute, he should drop the proceedings under Section 145 of the Cr PC. Our answer to question 2(b) is that in such a case, the Magistrate cannot proceed to pass an order under Section 146 of the Cr PC.

7. We now come to the third question. This question also pre-supposes that the Magistrate has come to a finding that the property was in the joint actual possession of the parties. The question further pre-supposes that the Magistrate apprehends a breach of the peace between the parties on account of this. We are then asked whether the Magistrate is competent to ask for security to keep the peace under Section 107 of the Cr PC in two circumstances namely, (a) where the proceedings were initiated under Sections 145 & 107 of the Cr PC and (b) where the proceedings were taken exclusively under Section 145 of the Cr PC. We have already indicated that there should not be a mixed proceeding both under Ss. 145 & 107. Properly speaking, proceedings under Ss. 145 & 107 should be separate. If they are separate, the Magistrate can drop the proceedings under S. 145 & pass such order as he thinks fit in the proceedings under S. 107. If, however, the Magistrate has taken the irregular course of having mixed up proceedings under Section 145 & 107 of the Cr PC he can drop those proceedings & by a separate order commence proceedings under S. 107. Where, however, proceedings have been taken exclusively under Section 145 of the Cr PC, the Magistrate cannot pass an order under Section 107 of the Cr PC in those very proceedings & they must be dropped but as stated above it is open to him to start fresh proceedings by order under Section 107 of the Cr PC if he is satisfied that such action is necessary & to proceed according to law. This is our answer to question No. 3.

8. The learned Judge who referred these points has also referred the reference by the Ses. J. to us for decision. The Ses. J. has said that the order of the Magistrate relating to Bara No. 2 to the effect that the parties would remain in joint possession of that Bara should be set aside as no such order can be passed under Section 145 of the Cr PC. We accept the reference so far as this is concerned because the law is well settled that an order under S. 145 can only be passed in favour of a party in exclusive possession of the property & no declaration of joint possession can be made under Section 145 of the Cr PC. The next point referred by the Ses. J. Is that the Magistrate could not bind over the parties under Section 107 of the Cr PC when he practically took no proceedings under that Section. We are of opinion that in this view also the Ses. J. is right because we do not find even an order under Section 112 of the Cr PC on this record, nor do-we find that any compliance was made with the provisions of S. 113. The proceedings, therefore, culminating in the order under S. 118 read with S. 107, were, in our opinion, completely irregular & we, therefore, set aside the order under Section 107 of the Cr PC passed by the Magistrate. The reference is, therefore, accepted.

V.S.B

9. Reference accepted.

Nahar Singh v. The State

Structured Summary of the Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Nahar Singh v. The State

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