JUDGMENT
Imam, J.
1. The rule was issued upon the opposite party to show cause why proceedings in contempt should not be started against him lor disobeying the order of this Court dated 21-4-1950, by which he was directed that if he considered it necessary that fresh proceedings should be taken, he should proceed either under Section 145, or against both parties under Section 107. In order to appreciate as to whether the circumstances indicate contempt committed by the opposite party, it is necessary to set out certain facts. As a result of a police report, the opposite party as Subdivisional Officer of Moti-hari drew up proceedings under Section 107, Criminal P. C. on 21-11-1949 against the second party consisting of ten persons, including one Jaigopal Prasad Singh. There was a reference to this Court recommending the quashing of these proceedings and that reference was accepted by Agarwala J. on 21-4-1950, whereby the proceedings drawn up were quashed and the magistrate was directed to proceed either under Section 145, or against both parties under Section 107, should it become necessary to institute fresh proceedings.
2. On 5-9-1950, the police submitted a report against Jaigopal Prasad Singh as the first party and Hardeo Mehra and Ram Charitar Lal as the second party, under Section 107, Criminal P. C. On this police report, the magistrate drew up proceedings under 107 of the Code against Jaigopal Prasad Singh only. When Jaigopal Prasad Singh appeared before the magistrate on 15-9-1950, he filed a petition showing cause against the proceedings which had been drawn up against him. In that petition, there was pointed reference to the fact that the previous proceedings under Section 107 had been quashed by this Court by its order dated 21-4-1950. It was further contended in the petition that the fresh proceedings which had been drawn up were illegal and in defiance of the order of this Court. A further petition was filed on that date before the magistrate praying that the proceeding may be stayed, but the magistrate thought that this petition was a frivolous one and he directed that the opposite party, namely, Jaigopal Prasad Singh must execute a bond of Rs. 500/- with two sureties of Rs. 250/- each, by 16-9-1950. Jaigopal Prasad Singh then moved the Sessions Judge, who made a reference to this Court recommending that fresh proceedings under Section 107 drawn up against Jaigopal Prasad Singh should be quashed. In that letter of reference attention of this Court was drawn to the fact that the magistrate concerned, namely, the opposite party, had disobeyed the order of Agarwala J. The reference was accepted & the proceedings under Section 107 were quashed on 17-12-1951 by Shearer, J, who, at the same time, called upon the magistrate concerned to explain as to how he came to disregard the order of Agarwala J.
3. The opposite party has suggested in his explanation that the order of this Court passed by Agarwala, J. was not shown to him, and he did not know at the time because of that, that such an order had in fact been passed although the show cause petition did make mention of it. He has further submitted that the disobedience of the order of Agarwala J. was not intentional and he offered an unqualified apology for having in fact disobeyed the order when he had no real intention in doing so.
4. The real question for determination is whether the circumstances establish a prima facie case that contempt of this Court has been committed by the opposite party, or whether the opposite party has been guilty of carelessness without any real intention to disobey the order of this Court. The proceedings which were drawn up on 21-11-1949 and which came to be quashed by Agarwala J. were between Ramla-gan Prasad, first party, against Jaigopal Prasad Singh and nine others. The second proceedings under Section 107, Criminal P. C. which came to be quashed by Shearer J. on 17-12-1951 were against Jaigopal Prasad Singh only as the first party, and Hardeo Mahra and Ram. Chartar Lal who were not parties in the previous proceedings, as the second party. Technically speaking the proceedings which were drawn up in September 1950 were not proceedings between the same parties having regard to the fact that the proceedings drawn up on 21-11-1949 were between Ramlagan Prasad and Jaigopal Prasad Singh and nine others. The argument may be technical, but one who is in a position such as the opposite party is would be entitled to raise any technical objection which might stand in his favour on the question as to whether there had been actual disobedience of the order of
this Court. The order of this Court of 21-4-1950 was an order upon the magistrate that if fresh proceedings had to be instituted it should under Section 145 of the Code, or against both parties under Section 107 of the Code. Quite obviously, the order of this Court of that date was with reference to the parties before the Court at that time. It cannot, therefore, be said, legally, that the second proceedings drawn up by the magistrate were between the same parties and, consequently, there had been disobedience of the order of this Court.
5. On this ground alone, I think, it cannot be said that in the eye of law what the magistrate had done amounts to disobedience of the order of this Court; at the same time, there has been, in my judgment, a disregard of the spirit of the order of this Court, The magistrate should know, because it is well-known everywhere, that where there is a land dispute the proper procedure is to institute proceedings under Section 145 of the Code, but if circumstances necessitate the drawing up of proceedings under Section 107 of the Code then it should be between both the parties in order that no one may be placed at a disadvantage if proceedings were drawn up against only one party. If a magistrate is unaware of this rule which has been consistently observed by this Court for so many years as well as by other Courts in India, all I can say is that his qualification to be a magistrate is a very poor one. The magistrate, when he was told by Jaigopal Prasad Singh that there was an order of this Court whereby it was suggested that a proceeding under Section 145 of the Code was the proper method, and that if a proceeding under Section 107 had to be taken then it should be against both parties, ought to have listened to the representation of Jaigopal Prasad Singh and proceeded in a manner which has been suggested for so many years in matters of this kind. But negligence or lack of knowledge of law or procedure does not necessarily make the person so guilty of contempt of Court. I cannot, however, conclude this order without expressing my own personal opinion that the magistrate has shown gross carelessness in the discharge of his duty. None-the-less it cannot be said that in the eye of law he is guilty of contempt of Court. The rule is accordingly discharged.
Sinha, J.
6. I agree.