1. This is an application on behalf of the second party, against whom an order under Section 145 of the Cr PC, has been passed by the Sub-divisional Officer of Bihar.
2. It appears that there was a proceeding sunder Section 141 of the Cr PC, between the parties, in which the final order was made on 19th December, 1919, forbidding the first party from going upon the land in dispute.
3. The order was passed by a First Class Deputy Magistrate. On 12th January, 1920, while the order under S. 144 was still in force, proceedings under S. 145 ware drawn up by the Sub-divisional Officer of Bihar with respect to the land in dispute, which proceedings terminated on 11th March, 1920 in favour of the first party.
4. The first ground that has been urged by the learned vakil appearing on behalf of the petitioners is that, while the order under S. 144 was in force, no proceedings under S. 145 could be drawn up. I regret I cannot accept this contention as sound. In my opinion, it ignores the cardinal difference between a proceeding under S. 144 and that under S. 145. A proceeding under S. 144 has nothing to do with the question of possession of the parties. It relates only to a temporary order in emergent cases of apprehended danger. S. 145, on the other hand, relates to a dispute concerning land or water that may be likely to cause a breach of the peace. It was quite open to the Sub-divisional Officer, after the final order under S. 144 was passed, to draw up proceedings under S. 145.
5. Now, it has been repeatedly held by this Court that the proper proceeding to be adopted, when there is a dispute, which may likely cause a breach of the peace concerning land or water, is a proceeding under S. 145 and not a proceeding under S. 144; and the principle, upon which these decisions rest, is that there ought to be, as far as the criminal Courts are concerned, finality of disputes between the parties. In my opinion therefore this contention of the petitioner must fail.
6. The second ground that has been urged is that under S. 145 the Magistrate must be satisfied that a dispute likely to cause a breach of the peace exists, either upon a police report or upon information, and it is urged that the Magistrate started proceedings under S. 145 neither upon a police report nor upon any information, but upon reading the petitions filed by the parties in the proceedings under S. 144. The learned vakil pursues his argument further and contends that the term “information” necessarily presumes that some one has informed the Magistrate, and it does not include knowledge derived by the reading of certain petitions by the Magistrate. There is no doubt that there is a clear distinction between information and knowledge, as we find it in S. 190, Cl. (c). But, in my opinion, “information,” as used in S. 145 is not used in any technical sense. The meaning to be attached to this word should be as liberal as possible. The word “information” in S. 145 does not refer to any particular way in which a Magistrate's attention should be drawn. It is wide enough to cover the knowledge of the Magistrate derived by reading the petitions filed by the parties in another proceeding, which satisfied him that a breach of the peace was imminent. This contention is therefore overruled.
7. The third objection is that the proceedings do not indicate the specific plots in dispute. The clearest answer to this objection has been given by the Sub-divisional Officer in his order, inasmuch as the parties fully knew what the lands in dispute were, and it does not matter under those circumstances that the disputed lands have not been specifically mentioned in the proceedings. There has been no prejudice to the petitioners on this ground at all.
8. The last objection, which, in my opinion, must prevail is that the order purporting to be under Section 148 of the Cr PC, awarding Rs. 50 to the first party, is without jurisdiction. S. 148 permits a Magistrate, deciding a case under S. 145, to award to the successful party costs to the extent of pleader's fees and costs of witnesses, and as this order is a judicial order, it must be based on proper materials. There is nothing in the order of the Magistrate to indicate on what materials he came to the conclusion that Rs. 50 is the sum, which should be paid to the successful party. It has been held in the case of Udoy Narain Chakravarty v. Satish Chandra Chattaraj(1) that under S. 148 of the Code, a Magistrate has jurisdiction to award only the actual costs incurred. In this case, there being no materials on the record and nothing in the order to show that a sum of Rs. 50 was incurred, the order was without jurisdiction. If there had been anything to show that the Magistrate had arrived at this figure as the result of the calculation of the costs incurred by the first party, certainly I would not have interfered; but there being nothing to show this, either in the order or in the proceedings, the order awarding Rs. 50 to the first party must be set aside. The result is that I uphold the order of the Magistrate passed under Section 145 of the Cr PC, but set aside his order for costs purporting to have been passed under S. 148 of the Code.
V.S/R.K
9. Order varied.