JUDGMENT Sulaiman, J.
1. This reference must be accepted. The accused persons were bound over under Section 107 of, the Criminal Procedure Code and were also ordered to pay Rs. 75 as costs of the case to be paid to the complainant Mahangoo.
2. Under Section 117 Sub-clause (2) of the Criminal Procedure Code the enquiry had to be as nearly as might be practicable in the manner prescribed for conducting trials and recording evidence in summons cases. That provision was ignored and the case was tried as if it were a warrant case.
3. Then again the order as to the payment of costs was altogether illegal. Section 545 of the Code of Criminal Procedure cannot possibly apply to a case under Section 107 inasmuch as no fine was or could have been imposed. The order directing the accused persons to pay Rs. 75 as costs to the complainant was therefore ultra vires.
4. On the merits too the case must fall to the ground. Only three witnesses were produced by the complainant and none of them expressly stated that there was any likelihood of a future breach of the peace. On the other hand the third witness, the chaukidar of the village, when cross-examined admitted that he himself felt no fear of a breach of the peace on seeing the happenings alleged by the complainant. It is proved that there was no previous enmity between the parties. The complainant's case is that there have been a series of bad years, impoverished crops and bad outturns and that, therefore, he made efforts to pay up his arrears of rent to the accused zemindars by division of his crops instead of in cash, but the zemindars refused the offer. The trying Magistrate remarked. The adamantine hearts of these oppressors of the poor have been untouched by the sight of. helpless poverty and stricken misery." The amount of the arrears of rent stated to be due was only Rs. 42-11-6. In the same breath the complainant, raid to be due helpless poverty and stricken misery," alleged that the accused persons owed him Rs. 85 as the price of sugarcane crops sold to them last year and that in spite of demands the money had not been paid. It is difficult to conceive that on the one hand the accused would not pay up the debt due from them and the other they would insist on the payment of arrears of rent due from their creditor. Having read the judgment of the Trying Magistrate as well as the reference by the Sessions Judge I have come to the conclusion that this is a case in which the order passed under Section 107, should be altogether set aside.
5. I accordingly set aside that order and direct that the sum of Rs. 75, if already paid by the accused persons, should be refunded.