1. We are asked in this case to set aside proceedings under S. 144 and to direct that the Deputy Magistrate take proceedings under Section 145 of the Cr PC. The learned Government Advocate has put before us the facts of the case and the case-law bearing thereon. The facts are that the Police received information that there was a likelihood of a breach of the peace with regard to possession of standing crops in two villages and also with regard to the Mokarrari rights over a considerable area in those villages. A head constable of police made a report on 19th December 1917 to his superior officer recommending that orders under S. 144 be issued upon both parties. Upon this the Inspector reported that proceedings under S. 144 alone were not sufficient in such a case and that action under S. 145 should be taken. In the meantime one of the parties had appeared before the Court and had reported to the Magistrate that the enquiry before the police was going on and had urged that it was advisable that an officer superior to the head constable should be deputed to superintend the investigation and also that suitable action should be taken to prevent a breach of the peace. Upon these reports the learned Magistrate passed orders, purporting to be under S. 144 ex parte against both parties, at the same time intimating that he would consider on the date fixed whether proceedings under S. 145 should be taken. The question whether proceedings under S. 145 should be taken was not further considered. On the date fixed the parties-appeared and filed written statements and a mass of documents. Upon a consideration of the written statements and one document on each side out of the mass filed, the learned Magistrate made absolute the order under S. 144 against one party and cancelled the order as against the other.
2. There is authority in the case of Parkar Mahton v. Ram Khelwan (1) for the proposition that the Magistrate had no jurisdiction to act under S. 144 where the facts on the record clearly indicated that-procedure under S. 145 was necessary. It was held that the words of the latter section left no other course open to the Magistrate than to take proceedings under S. 145, when he had information that a dispute existed regarding land within his jurisdiction likely to result in a breach of the peace.
3. The whole case-law bearing on the distinction between proceedings under Ss. 107 and 145 was clearly set forth in the order of reference to a Full Bench made by Caspersz, J., and Ryves, J. in the case of Emperor v. Abbas (2). The Full Bench were not prepared to lay down any hard and fast rule on the subject. All that was said was that there was no conflict between Sections 107 and 145 of the Cr PC, but that the question whether after proceedings under S. 107 had been taken it would be proper for the Magistrate to act under S. 145, must depend on the circumstances of each case as it arises.
4. It might be that after an order under S. 107 no likelihood of a breach of the peace would continue. There was no question in this case, nor in the decisions quoted in the order of reference of the Magistrate's powers under S. 144, but the decision seems to have been since regarded as justifying Magistrates in declining to take action under 145 until it has been ascertained that proceedings under S. 144 have been insufficient to allow the dispute. Had the matter rested there we should see no reason to interfere. But it has gone further and as we think too far. In order to avoid the taking of evidence and the making of a definite order under S. 145 a summary procedure under S. 144 has been substituted in very many cases in which without possible doubt proceedings under S. 145 should have been taken. We have noticed the practice growing in this province. After a series of such cases in Darbhanga, we ascertained that the then Magistrate of that district had issued a circular order to the officers subordinate to him directing them to refuse to take action under S. 145 on the ground that the procedure therein involved was tedious and unprofitable. We now find some thing of the same sort happening in Gaya. One such case from Gaya was recently before the Court in Criminal Revision No. 352 of 1917: Bansi Singh v. Emperor (3). This case comes from Gaya and there is another case from Gaya pending. The matter to us to be one of great importance. The provisions of S. 145 were enacted with the specific intention of definitely settling a quarrel after a fair hearing of each side. In order that the settlement of the quarrel might be without doubt permanent, it was further enacted that if the decision under S. 145 be not contested in the civil Courts within three years, the party declared to be in possession shall remain in possession for ever.
5. The substitution of proceedings under S. 144 for proceedings under S. 145 appears to us to have no logical object whatever save to avoid the labour of taking oral evidence of possession. The learned Government Advocate accepts as incontrovertible the following propositions : firstly, that the Magistrate is not required to take proceedings under S. 145 if he is satisfied that by other methods he can avoid a breach of the peace; secondly, that the use of S. 144 is a suitable method of avoiding a breach of the peace only if it is clear upon a reading of the police reports, that the claim of the party creating the disturbance is not a claim made in good faith. This is certainly the view taken in Mahadeo Kunwar v. Bisu (4) and Emperor v. Ram Baran Singh (5). There can be no doubt but that in the case before us the dispute between the parties is a genuine dispute and as we understand the decision of the Full Bench in Calcutta already quoted not one which could be settled by an order under S. 107 or S. 144. In spite of the proceedings under S. 144 the dispute still subsists. The Magistrate was required by law in the first instance, and is still required by law, to settle the dispute by an order under S. 145 or S. 146. It is suggested by Mr. Khurshed Husnain for the opposite party that our power of superintendence does not extend to direction to a Magistrate to take action which it is within his discretion to refuse to take. In this connexion the case of Permessar Singh v. Kailaspati (6) is quoted. Chamier, C. J., in that case said at p. 340 of 1 P.L.J:
“A High Court can and will interfere where there has been a material irregularity which amounts to a refusal to exercise or a usurpation of jurisdiction.”
6. We may refer also to the quotation made at p. 348 from Blackstone's Commentaries:
“It is the peculiar business of the Court to superintend all inferior Tribunals and therein to enforce the due exercise of their judicial and ministerial powers with which the Crown or legislature have invested them, and this not only by restraining their excesses, but also by quickening their negligence and obiating their denial of justice”
and from Bacon's Abridgment:
“The superior Courts having a superintendence over all inferior Courts may in all cases of innovation award a prohibition.”
7. When we come to examine the proceedings now before us it is obvious that they are in reality proceedings under Ch. 12. The notices issued to the parties state that there is a dispute between them regarding land, the boundaries of that land are given, and the parties are given an opportunity to make a statement before the Court on a date fixed. They are ordered not to go near the land meanwhile. The notices are in effect the notices contemplated in the last clauses of S. 145 (1) and (4). In response to the notices the parties appeared and filed written statements and documentry evidence precisely in the manner indicated by S. 145 (1). But under the pretence that the proceedings were under S. 144, the Magistrate did not proceed under Cl. 1, S. 145 (4), but decided, upon summary inspection of the documents before him, that one of the parties should remain in undisturbed possession for two months. It would have been but little les3 ridiculous to issue a notice in the form required by S. 488 of the Code, and deal with it under S. 144 on the ground that prompt payment of a maintenance would tend to prevent danger by starvation to human life. In the exercise of our power of superintendence we are required to prohibit this innovation, and by quickening the negligence of the inferior Court to obviate a denial of justice. The Magistrate has issued an order which having regard to the action taken by the parties upon it was an effective order under S. 145, Cl. (1), read with the third part of Cl. (4). He will now proceed to complete the proceedings instituted by this action. Written statements and documentary evidence have been filed. All that is required to be done is to hear such oral evidence as the parties may adduce and make an order under S. 145 (6) or under S. 146, in accordance with his finding upon the question which of the parties was in possession upon the date of the notices issued, that is 29th December 1917.
V.S/R.K
8. Case sent back.