J.N. Datta, J.C.
1. This is a Criminal reference by the learned Sessions Judge, Tripura under Section 438 of the Criminal Procedure Code, which must be accepted.
2. The circumstances giving rise to the reference may be briefly stated thus: On the complaint of the present petitioner and after considering the report made by the Police after enquiry, the Sub-Divisional Magistrate, Udaipur, took action under Section 145, Sub-section (1) of the Criminal Procedure Code as It stood before the amendments Order 1955 (Act No. 26 Order 1955). The case was fixed for examination of witnesses Order 3-12-1955.
On that date the learned Magistrate dropped the proceedings as the petitioner was absent, and had therefore failed to prove his case. But the order sheet of that date also shows that an application for adjournment was filed on behalf of the petitioner but because it was not supported by a medical certificate, the Magistrate refused to act on it.
An examination of that application shows that it was filed Order 3-12-1955, but there is no endorsement to show, who actually filed it. It bears the signature of the counsel of the petitioner also, and in the circumstances, it would not be unreasonable to presume that the petition was presented by the counsel.
3. But still we are at sea, as to whether it was presented at the time the case was called on for hearing, i. e., whether the counsel was present then or it was presented before that, the counsel remaining absent when the case was actually called on for hearing. The order sheet is unhappy in that respect, as it does not record and show these details. The necessity of recording these matters correctly cannot be emphasized too much, for on them may depend the decision of some important point.
It is not enough to say that a party is present, because that party may consist of more than one person and all of them may not be present. Again in some proceedings, it may be permissible for the agent or counsel of that party to represent him, or the Court may permit in some cases appearance by a counsel. A correct picture cannot therefore be conveyed by merely stating that such and such party is present.
Precision in recording such matters is therefore absolutely necessary so that there may be no room for mistake or misunderstanding. It is thus obvious that a complete and correct picture can only be conveyed if care is taken in recording these details, and it is clearly mentioned which party is or parties are present in person and which by or with counsel.
4. The explanation of the succeeding Magistrate also does not throw much light but goes to show that one witness of the petitioner and two members of the second party were present Order 3-12-1955. The learned Sessions Judge, who obtained that explanation should have insisted on the explanation of the Magistrate who actually passed the impugned order, but that was not done. I would have insisted on it, but for the fact, that it would1 mean a further waste of time, without in any way affecting the decision.
5. The order of the learned Magistrate was clearly illegal and without jurisdiction, as he was not entitled to proceed in the manner he did. If a party in a proceeding under Section 145 is absent, the Magistrate can proceed ex parte, and hear the other party present and his witnesses, and then decide whether the other party is entitled to an order in its favour.
Once a Magistrate finds that there is an apprehension of a breach of the peace, it is his duty to enquire into the possession of the parties, and to pass orders accordingly. It is more than obvious that he cannot base such an order on merely the absence of one party, without taking some evidence. There is also no provision in Section 145, which would warrant the dismissal of the case, merely because the complaining party failed to appear, and such an order would be ultra vires See Chinnapareddigari Sidda Reddi v. Mala Dasari Adigadu 31 Cri LJ 190 : AIR 1929 Mad 847 and Mt. Raquma v. Mt. Ghirrai, 41 Cri LJ 96 : AIR 1940-Oudh 22.
It may be mentioned incidentally, that in this respect the position under Section 145 as amended by Act 26 Order 1955, is the same and has not been altered except that examination of witnesses is not absolutely necessary. But he must decide the question of possession on the basis of documents and affidavits etc., produced in the case. It is so, because once the Magistrate is satisfied that there is an apprehension of breach of the peace it becomes his concern, no less than that of the parties, to see that every precaution is taken to avert that likelihood of breach of the peace.
It follows therefore that he cannot drop the proceedings in this manner unless he is satisfied for good reasons to be stated, that the apprehension for reach of the peace which gave him jurisdiction has ceased to exist. In the present case, the learned Magistrate did not at all consider this aspect.
6. The result is that the order of the learned Magistrate dropping the proceedings is set aside, and he is directed to proceed according to law.