Full Judgment
G.K. Misra, J.
1. I Petitioners are members of the second party. Opposite parties 2 to 6 are members of the first party. The case of the first party members is that in village Baku Jainebad, there is a tank on plot No. 139 in Khata No. 116 with an area of 0.73 acre recorded as 'Anabadi' They claim eight annas interest in the tank and title in it on the basis of a settlement by the Anchal The petitioners assert that the tank belonged to the villagers and that they had right of user of water and fishery The learned Magistrate started a proceeding under Section 107 Cr. P. C. (hereinafter referred to as the Code) against the petitioners and not against the members of the first party. He also passed an order under Section 117(3) of the Code calling upon the petitioners to furnish interim bond. Against this order, the revision has been filed.
2. Mr. Misra raised two contentions:
(1) In the facts and circumstances of this case, a proceeding under Section 147 only and not one under Section 107 of the Code is maintainable; and
(ii) Even it a proceeding under Section 107 of the Code was initiated, it should have been against both the parties and not against the petitioners alone.
3. Section 147, Sub-section (1) of the Code lays down that whenever any District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied, from a police-report or other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water as explained in Section 145, Sub-section (2) whether such rights be claimed as an easement or otherwise, within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims, and and shall thereafter inquire into the matter in the manner hereinafter provided
It is the common case of the parties that the present apprehension of breach of peace exists regarding fishery right and user of water in the tank. The learned Magistrate should have more appropriately started a proceeding under Section 147 of the Code and would have proceeded to make an enquiry as prescribed therein
4. It is, however, well settled that even though a proceeding under Section 147 of the Code would furnish a better remedy, a proceeding initiated under Section 107 of the Code is not without jurisdiction. Sections 107, 144, 146 and 147 of the Code can be invoked by a Magistrate for maintenance of peace and order. Section 144 of the Code is applied to cases of urgency. Under Section 107 of the Code the Magistrate has to take security from persons likely to cause disturbance of the peace. Where the apprehension of breach of peace relates to land, resort is taken to a proceeding under Section 145 of the Code. Where however, it relates to right of user of land and water, a proceeding under Section 147 of the Code is initiated. The manner of enquiry under Sections 145 and 147 of the Code is almost identical.
Whether the Magistrate would take recourse to one or the other of the section would depend upon the facts and circumstances of each case. If, however, without resorting to Sections 145 to 147 regarding dispute in relation to land or water or the right of user of the same, the Magistrate adopts a proceeding under Section 107 or 144 of the Code, his action cannot be said to be without jurisdiction. That does not, however, mean that the Magistrate would be arbitrary in exercise of his powers and discretion. It has been repeatedly said that regarding dispute relating to land or the right of user, a Magistrate should start proceeding under Section 145 or 147 of the Code. It may be in some cases that due to urgency an order under Section 144 of the Code is imminent. It is, however, the paramount duty of the Magistrate to convert the 144 proceeding to one under Section 145 or 147 of the Code. The reasons have been fully discussed in (1966) 32 Cut LT 1036, Iswar v. Iswar and 33 Cut LT 58= (AIR 1967 Orissa 72). Hrusikesh v. Balaram.
5. In this case, the dispute related to the right of fishery and user of water of the tank. More appropriately a proceeding under Section 147 of the Code should have been initiated by the learned Magistrate. But as has already been stated, the proceeding under Section 107 of the Code is, however, not without jurisdiction. On that ground it cannot be quashed.
6. The next question is whether the Magistrate should have initiated a proceeding under Section 107 of the Code against both the parties or only against the second party as he has done. It is well settled that a proceeding, under Section 107 of the Code should ordinarily be started against both and not against one of the parties. That would put the party against whom no proceeding is started in an unfair advantage over the other party There is an exception to this rule that where the claim of one of the parties is a mere pretence then a proceeding under Section 107 of the Code can be started only against that party (See 32 Cut LT 472 = (AIR 1967 Orissa 17) Daitari v State). Such a conclusion cannot be reached without very strong materials in support thereof The first party members claim only half the interest in the tank. It may be that the villagers have some rights in the tank. At any rate, there are no materials to show that the claim of the villagers is a pretence. The proceeding under Section 107 of the Code only against the petitioners is misconceived and is accordingly quashed.
This does not, however, debar the Magistrate from starting a proceeding under Section 147 or under Section 107 of the Code against both the parties, if apprehension of breach of peace still exists.
7. In the result, the proceeding is quashed and the order of the learned Magistrate dated 18-10-1966 is set aside. The criminal revision is allowed