Das, J.I am invited in this case to quash the proceedings pending against the petitioners u/s 107 of the Criminal P.C. The proceeding was started on 19th October 1926, and the notice served upon the petitioners runs as follows:

Whereas from Police reports received it appears that Mirza Usuf Beg, Mirza Zulfakar Beg Mirza Nawab Beg of Usri Kalan, P.S. Raghunathpur, Hukumdar Khan of Sheikhpura P.S Siwan, Moghal Mian Syed Abdul Samad (alias Bhanjaji) and Gulam Hussaini of Hassanpura P.S., Siwan, are inviting the Mohammadans of the neighbourhood and making preparations to attack with force and guns and other deadly weapons the Hindu Dabi Bhasan procession at Usri on the 21st October 1926, and this act of theirs will create a serious disturbance of the public tranquillity. Let the Mohammadans aforesaid be required to show cause on 25-10-1926 why each of them should not be ordered to execute a bond of Rs. 1000 with two sureties of Rs. 500 each, for keeping the peace for a period of one year.

2. Nothing was in fact done before the 21st October 1926, and on the 9bh November 1926, the petitioners presented an application to the Court and asked the Court to drop the proceedings against them as the occasion with reference to which the proceedings were drawn up had passed away without any disturbance or breach of the peace. It appears that the 6ourt Sub-Inspector, who was no doubt consulted by the Sub-Divisional Magistrate, stated to the Court that

still some strained feelings exist between the two communities and there is a likelibood of a breach of the peace.

3. He accordingly prayed that the proceedings as against the petitioners should go on. The learned Sub-Divisional Magistrate considered the matter and ha thought that under the law he had no power to drop the proceedings.

4. Mr. Akbari appearing on behalf of the petitioners relies upon the decision of the Allahabad High Court in In the matter of the petition of Basdeo [1903] 26 All. 190.

5. In that case it was brought to the notice of the District Magistrate of Meerut that certain Hindus of the town of Hapur had organised a conspiracy with the object of giving trouble to the Muhammadans of that town during the Muharram and that the result of their organisation would very likely be a breach of peace. There was no time to take proceedings u/s 107 of the Criminal P.C, but precautionary measures were taken by the police and a disturbance was averted. After the Muharram was past the District Magistrate instituted proceedings against the leaders of the Hindu community and evidence was given of various acts on the part of these persons, which evidence, if believed, would indicate an intention on the part of a large number of Hindu inhabitants of Hapur to provoke a breach of the peace on the occasion of the late Muharram. On this evidence the Hindus were bound over by the Magistrate to keep the peace for a term of one year.

6. Against that order an application in revision was presented to. the High Court and it was contended on behalf of the petitioners that even admitting that the petitioners were guilty of the conduct which was alleged against them, it could not be inferred from that conduct, which was prior to the last Muharram festival and which did not leal to any disturbance, that the applicants were likely to commit a breach of the peace ox to disturb the public tranquility in the near future. With reference to this argument, which was accepted as well founded by Stanley, C.J. the learned Chief Justice said as follows:

Section 107 presupposes that the person sought to be put under a rule of bail is likely (not was likely) to commit a breach of the peace or disturb .the public tranquility. The evidence goes to show that the petitioners at the utmost were likely to cause a breach of the peace during the last Muharram festival. It cannot be presumed from this that they are likely to do the same at the next Muharram festival.

7. The learned Government Advocate appearing on behalf of the Grown contends that the present case is a different case altogether inasmuch as the proceedings are still pending against the petitioners and the evidence has not yet been taken by the Court. But at the same time he refers to the evidence of one of the witnesses who was examined in the other case which was brought against the Hindus and which evidence was to the effect that there would have been a breach of the peace on the 21st October 1926, but for the timely action taken by the authorities.

8. Now, I apprehend that if the evidence is allowed to be taken in this case it cannot establish a case higher, from the stand point of the prosecution, than was established in the case just cited by me, that is to say, all that the evidence can establish is that the Mohammadans of the neighbourhood were making preparation on or before the 21st; October 1926, to attack with force and guns and other deadly weapons the Hindu Debi Bhasan procession. This being the position, I cannot see, with all respect, how the present case can be distinguished from the case cited. If anything, the present case stands on a stronger footing from the point of the petitioners inasmuch as we do not know what the evidence will be, whereas we do know that in the Allahabad case the evidence which was given showed conclusively that there would have been a serious riot but for the action that was taken by the authorities.

9. The Allahabad case has been followed by the Bombay High Court in re Mirabai Sheikh Hussaini [1904] 6 Bom. L.R. 662. It is quite true that in Ajodhya Prasad v. Emperor [1911] 8 A.L.J. 1080 the earlier case of the Allahabad High Court was distinguished. In dealing with that ease Chamier, J, said as follows:

If the evidence in that case" namely the earlier case of the Allahabad High Covert, did not show that it was likely that the petitioners would commit a breach of the peace after the institution of proceedings go case was established for taking security from the petitioners.

10. But as I read the judgment of Stanley, C.J., in that case the evidence did show that but for the action taken by the police there would have been a breach on the day of the Muharram. Chamier, J., continued to say as follows:

That case cannot be regarded as laying down a rule that security should not be taken in a case of this kind after the occasion has passed on which ill-feeling between parties first came to a head.

11. I agree that no hard and fast rule can be laid down in cases of this nature, but I am of opinion that taking all the circumstances into consideration the present proceedings against the petitioners ought to be quashed and I order accordingly.