1976 P Cr (PLP)

Date of hearing: 15th September 1975. This is a reference made by learned Sessions Judge, Tharparkar, recommending quashment of proceedings initiated against applicant Rakha under section 107, Cr. P. C. in the Court of S. D. M., Tharparkar at Mirpurkhas.

2. S. H. O. Mirpurkhas had submitted a report to the learned S. D. M. under section 10 1/150, Cr. P. C. on 16th February, 1974, requesting for initiation of proceedings against applicant Rakha, This report was based on an application made by one Mohammad Ismail to S. P. Tharparkar, wherein he claimed that a house was rented by him to Rakha which he needed for his personal use and when he went to Rakha to ask for its vacation he was abused and threatened by the said Rakha. Learned S. D. M. passed an order under section 112 Cr. P. C. calling upon Rakha to show cause why he should not be ordered to execute a bond in the sum of Rs. 2,000 with one surety in the like amount for a period of 12 months. Complainant Mohammad Ismail was examined by learned S. D. M. on 27th April, 1974. Nazar Hussain, Additional S. H. O., was examined on 29th May, 1974. The Additional S. H. O. stated that during the pendency of the proceedings, while Rakha was on bail he went to the house of the complainant Mohammad Ismail and gave him fist blows calling upon him to withdraw the proceedings otherwise he would have to face dire consequences. On this statement of the Additional S. H. O. an order under section 117 (3), Cr. P. C. was passed by learned S. D. M. which was challenged before the Session! Judge. The grounds taken were:‑ (a) That no independent witnesses of the locality were examined before passing order under section 107, Cr. P. C. (b) that the dispute was of a civil nature i.e. the desire of the landlord to get his house vacated from the tenant but it was given a criminal twist. The learned Sessions Judge while observing that although the application challenged the legality of the order under section 117 (3) Cr. P. C. but the entire proceedings needed to be quashed and recommended accordingly.

3. The case of the complainant himself is that he wanted the vacation of the house because he needed it for himself and because the A tenant was using it as a shop. In order to achieve this possession he went to the house of Rakha and demanded its vacation. It is clear that Rakha was in possession of the house legally. Vacation of the house could be effected through the Rent Controller. The approach of the landlord Ismail in the manner he has substantiated was not warranted and even if it is conceded that Rakha while refusing to vacate the house threatened the landlord, it cannot be contended that such refusal on part of Rakha was a wrongful act. In Mst. Jussoda Lekhraj and others v. Emperor (A I R 1939 Sind 167) it was held that section 107, Cr. P. C. cannot be intended to authorise a Magistrate to take action to prevent lawful practice which may result in a breach of peace because of tire wrongful and unlawful acts ref others, So if Ismail had taken upon himself to commit a wrongful act it cannot be made the basis to allege that refusal by Rakha to vacate the premises without lawful means was a wrongful act. The case of Madho Singh and others v. Emperor (A I R 1942 Pat. 331) is also to the same effect.

4. The order under section 117 (3), Cr. P. C. was prompted on the statement given by the Additional S. H. O. when he said that during pendency of the proceedings Rakha had gone to the house of complainant Ismail, gave him fist blows and threatened him with dire consequences if the present proceedings were not withdrawn by Ismail. This statement on its own would not be sufficient for the action taken by the learned S. D. M. The Additional S. H. O. has admitted that he did riot refer the complainant for medical examination. Nor is the S. H. O. able to give the names of the witnesses allegedly given to him by the complainant. Secondly, in all the cases of breach of peace witnesses of the locality are the best persons to depose if there is any apprehension of breach of peace. In the present case, specific instance of assault has been alleged. The Additional S. H. O. himself states that there were persons witnessing the incident. They have not been examined. As such it would not be safe to rely on the sole statement of the Addl. S. H. O. which by itself is no better than hearsay. This view is supported by Bahadur and another v. The State (P L D 1964 Kar. 85).

5. In view of the above discussion the entire proceedings, as came before me, are quashed. Proceedings quashed.