H. Deka, J.C.
1. This was a petition under Rule 17' of the Rules for the Administration of justice and Police in the Khasi and Jaintia Hills against anorder (the- trial court dated 14-7-59 in a proceeding under Section 145, Criminal Procedure Code.
2. It is admitted that the Criminal Procedure Code itself docs not apply so far as the letter of the Jaw is concerned hut the spirit of the same is applicable in this area.
3. The facts of the case are that the first party who is opposite party in this Court, rnude an application for drawing up a proceeding under Section 145, (2) Criminal Procedure Code due to certain dispute over the Pator land in the area which he claimed to possess by virtue of his being a Pator. It was alleged that the second party was threatening to dispossess the first party avid had as a matter of fact, interfered with his possession. The police - submitted a report on or about 7th April. 1959, on. the basis of which the trial court passed the following order:
Proceeding Under Section 145, Criminal Procedure Code received against 1st party U Suna Pale and 2nd party U Debilal Puden and others. Issue summons on. both parties to show cause why they should not be bound down fixing 21-4-59. In the mean time police to attach the land under dispute.
The second order was passed on 28th April 1959 which was in the following form—
Issue summons again fixing 13-5-59 for parties, to appear and submit written statements showing cause why they should not be bound down and also their claims regarding actual possession of land.
The other orders are not relevant as such. Both parties filed written statements of their claims. The first party claimed possession on the basis of his being a Pator of Nongjngi appointed by the Dolloi and the Durbar and he claimed possession on the basis of such appointment with effect from 3rd December 1957. It was alleged that he was forcibly dispossessed in October 1958 by the members of the second party.
The first party filed sworn affidavits of three witnesses besides his own in support of his claim of actual possession. The second party U Suna Pale's case was that the disputed land belonged to him and he was in continuous possession thereof till the police attached the land on 8-6-59. He claimed to ibe in continuous possession of the land since 1944, since he was the Pator of Nongjngi Dolloiship.
4. The trial court held on the basis of the documents filed that the first party entered into possession of the land on 3-12-57 and even though the second party claimed to be reinstated in the Dolloiship, there was no evidence of his being restored to possession. Accordingly in the opinion of the trial court the first party was entitled to possession and it directed accordingly, purporting to act under- Section 145(6), Criminal Procedure Code.
5. Mr. Guha appearing for the second party who was unsuccessful in the court of the trial Magistrate, urges before me that the proceeding was incompetent, since it was not drawn up on satisfaction of the Magistrate that there was likelihood of the breach of the peace at the material time. In support of his contention he drew my attention to a decision of this Court in the case of 'Kissenlal Agarwalla v. Nagannal Agarwalla' ILR (1953) (5) Assam 243 : (AIR 1954 Assam 83), wherein it was held by a Division Bench of this Court that a proceeding drawn up merely on the basis of a police report without stating that the Magistrate himself was satisfied as to the existence of an apprehension of a breach of peace is not a proper proceeding under Section 14'5, Criminal 578 Procedure Code and it was further indicated in that judgment that even if a notice was issued on the parties to show cause that could not always make up certain lacuna in the preliminary order, if it is otherwise detective or not based on materials on record. In this case apparently there might have been some materials on record but the learned Magistrate did not exercise his mind nor did he express his personal opinion that he was satisfied as to the apprehension of a breach of the peace.
6. Now the only question therefore, is whether this lacuna of the Magistrate in not expressing that he was satisfied is only a matter of form or a matter of spirit of the law, which would decide the competence of the Magistrate to issue the order. In my opinion an apprehension of the breach of peace is an essential ingredient of drawing up a proceeding under Section 145, Criminal Procedure Code and if therefore, the Magistrate did not apply his mind to this requirement, he failed to observe not only the form but also the substance of the section itself which gives him jurisdiction to draw up a proceeding.
I accordingly follow the view expressed in the Division Bench decision of this Court mentioned above and hold that the proceeding was not correctly drawn up. It must therefore, be dropped with liberty to the first party to make a fresh application in case there is likelihood of the breach of peace. The rule is made absolute. Papers might go back.