Judgment:
Farooq Hasan, J.
1. This is a revision petition under Section 397 read with Section 401 of the Criminal Procedure Code against the judgment of Additional Sessions Judge, Udaipur, dated February 2, 1979 passed in criminal appeal No. 29/78 affirming the order of City Magistrate, Udaipur dated October 19, 1978 whereby the petitioners were directed to furnish bonds for maintaining peace and good behaviour for a period of months.
2. Briefly stated the facts of the case are that one Shri Dinanath son of Gulab Rai presented an application under Section 107/151/117 of the Code of Criminal Procedure in the Court of City Magistrate, Udaipur wherein dispute regarding agricultural land was alleged and it was stated in that application that the Khasra numbers shown in para No. 1 of the application were in the possession of the applicant Dinanath and the petitioner Shri Chunilal with the help of petitioners (opposite party) is disturbing in the peaceful possession of Shri Dinanath, here in after referred to as party No. 1. It was also alleged in the application that there is an apprehension of the breach of peace because of the unauthorised act of party No. 2. The learned City Magistrate sent the original application of party No. 1 for enquiry to the SHO, Bhopalpura. Inquiry was conducted by the SHO and a complaint under Section 107 Cr.PC was filed against party No. 2. The learned City Magistrate issued notice to the opposite party (party No. 2). The petitioner before this Court filed their reply which is available at page A/43 in the trial court file wherein it was stated that the land in dispute was in their possession. It was also stated in that reply that a revenue suit was filed by party No. 2 wherein request for temporary injunction was refused. Party No. 2 then went in appeal before the Revenue Appellate Authority against this order of dismissing the application for temporary injunction. This appeal of party No. 2 was accepted by the Revenue Appellate Authority, and party No. 1 along with certain other persons were restrained from disburbing the possession of party No. 2. Party No. 2 in support of their reply submitted the copy of the order dated June 26, 1978 passed by the Revenue Appellate Authority, Udaipur. In this order it has been observed that the land in question was in the occupation of party No. 2, and prima facie case was found in favour of party No. 2 and on this ground the learned Revenue Appellate Authority accepted the application for granting temporary injunction in favour of party No. 2 the present petitioners.
3. After taking evidence of both the parties the learned City Magistrate passed the impugned order whereby the present petitioners were then bound down for a period of six months under Section 117 of the Criminal Procedure Code.
4. Aggrieved by this order of the City Magistrate, an appeal was presented before the learned Additional Sessions Judge but without any success. Hence this revision.
5. I have heard the learned counsel for the parties and gone through the record.
6. The learned counsel for the petitioner contended that from the perusal of record this much is clear that there was a bonafide dispute regarding possession of immovable property between the parties. Both the lower court did not at all discuss the averments taken by the present petitioners and did not at all consider the documents produced by them. It was further contended by the learned counsel that looking to the facts circumstances of the case proceedings under Section 107 Cr.PC should not have been resorted to by the City Magistrate.
7. The learned Public Prosecutor, on the other hand, supported the orders passed by the lower courts.
8. I have given by serious consideration towards the arguments advanced by both the learned counsel.
9. There is ample material on the record to show that proceedings under Section 107 Cr.PC are not appropriate in the circumstances of the present case. There is no doubt that there was a clean dispute regarding agricultural land. Both the parties claimed their possession on the disputed land. The present petitioners have taken specific plea regarding title and possession over the disputed land in their reply and they submitted documents in support of their version. Party No. 1 also submitted documents in support of his version, i.e. orders regarding temporary injunction of the competent Courts which if on the record. In a case like this, the proper procedure would have been to initiate proceedings under Section 145 Cr.PC and to decide the dispute as to possession in favour of a party entitled for that. The learned City Magistrate, however, has not adopted that course. In view of the foregoing circumstances an another course which was open to the Magistrate was to initiate proceedings under Section 107 Cr.PC against both the parties to the dispute and to bind down the party which was proved to be not in possession of the land. The learned Magistrate on the other hand, initiated the proceedings under Section 107 Cr.PC only against party No. 1, the present petitioners.
10. As discussed above, party No. 1 Shri Dinanath had shown the dispute only with regard to immovable property. He had not stated any other reason for the breach of the peace. Both the lower courts did not at all consider this aspect of the case. It has not at all discussed that which of the two documents which were produced by the parties can be relied upon. I do not think it proper to discuss or appreciate the various documents presented by both the parties. The learned Additional Sessions Judge while rejecting the appeal of the present petitioners placed reliance on the orders and judgment passed in a regular civil suit in between Shri Dinanath and Shri Chuni Lal. In that suit the present petitioners were not party. The land in dispute is claimed by Shri Dinanath through Shri Chunilal whereas the present petitioners are claiming the disputed land at their own footing, Under these circumstances the only option before the City Magistrate was to proceed under Section 145 Cr.PC.
11. In the light of the above discussion and having regard to the circumstances of the case the revision petition is allowed, the orders passed by the City Magistrate and the Additional Sessions Judge dated 19-10-78 and 2-2-79 respectively are set aside and the City Magistrate Udaipur is directed that he can initiate the proceedings under Section 145 Cr.PC if the circumstances so exist.