R.S. Bindra, J.C.
1. To appreciate the lefial point involved in this reference made by the Additional Sessions Judge. Tripura, Under Section 438 Cr.PC. the relevant facts must be briefly set out. The revision petitioner Rabindra Kumar before the Additional Sessions Judee complained to the Officer-in-charge of the police station at Dharmanaear that there was apprehension of breach of peace in respect of 5 kanis of land situate in village Dewan Pasha. That Officer-in-Charge made inquiry into that complaint and then submitted a report to the Magistrate First Class. Dharmanagar. on 23-11-1968, statins that there was actually an apprehension of breach of peace over the possession of the land mentioned between Rabindra Kumar on one hand and Dharma Gour and his seven associates, the respondents herein, on the other. The learned Magistrate passed preliminary order under Sub-section (1) of Section 145 Cr.PC on the same date and simultaneouslv directed attachment of the land. He issued notices to the two parties calling upon them to put in written statements, affidavits and documents in support of their rival claims by 17-12-1968. On 28-11-1968 Rabindra Kumar, mentioned as first party in the preliminary order, moved an application praying to the Magistrate for sale by auction of the (Tops then standing on the land in dispute. Notice of this application was issued to the second party for 2-12-1968.
In the meanwhile, Dharma Gour, one out of the eight persons constituting the second party, petitioned the Magistrate for dropping the proceedings Under Section 145 on the footing that he had been in undisputed possession of the land in dispute over a lone period and that there did not exist, nor had ever existed, any dispute of the nature mentioned in Sub-section (1) of Section 145 respecting that land. It is not clear from the record whether notice of this petition of Dharma Gour was issued either to his seven associates of the second party or to Rabindra Kumar, the first party. Neither the application of Dharma Gour bears any order dated 30th of November. 1968, or of any subseauent date, nor the order-sheet indicates that notice of that application was sent to other persons on the record. The order-sheet contains two brief orders subsequent to the preliminary order dated 23-11-1968. One of them is dated 3rd of December. 1968. and the other dated 4th of December, 1968. The former reads: 'Both parties present. Heard 2nd party. To 4-12-68'. The second order runs thus: 'Both parties present. Heard first party. To 11-12-68'. It was on 11-12-1968 that the Magistrate passed an order dropping the proceedings in terms of Sub-section (51 of Section 145 Cr.PC and vacated the attachment. At the same time he deviated that 'The 2nd party which is in possession of the land will remain so until evicted in due course of law' and added that 'The produce of the land will naturally go with 2nd party'.
2. Aggrieved by that order of the Magistrate. Rabindra' Kumar took the matter in revision to the Court of Session. The revision petition came up for hearing before Shri S. M. Ali, the Additional Sessions Judge, who, by his order dated 29th of May. 1970, has made a reference to this Court recommending that the order dated 11-12-1968 of the Magistrate should be Quashed and the case remitted to him with the necessary directions.
3. Shri R. Ghosh, representing the revision petitioner, submitted that his client having not been afforded an opportunity to argue the petition made by Dharma Gour for cancellation of the preliminary order and dropping the proceedings, the impugned order must be set aside and the case remanded to the Magistrate for proceeding therewith according to the provisions of law. Another point raised by Shri Ghosh was that while dropping the proceedings under Sub-section (51 the Magistrate has no Jurisdiction to give a finding which one out of the parties in contest was in possession of the land on the date of the preliminary order or to declare that that party shall continue in possession until evicted therefrom in due course of law.
Shri A. K. S. Choudhurv, appearing for the second party, verv fairly conceded that the Magistrate could not have declared the possession of second party over the land in dispute, nor issued a direction that the possession of that party shall not be disturbed until evicted in 'due course of law. while dropping the proceedings under Sub-section (51. However, he ioined issue with Shri Ghosh on the point that the revision petitioner had not been afforded an opportunity to address the Court in regard to the prayer made by Dharma Gour in his petition dated 30th of November. 1968. He read a passage from the impugned order in support 'of his contention that ample opportunity had been given to the parties to address arguments respecting that praver of Dharma Gour.
4. Sub-section (5) of Section 145 Cr.PC provides that nothing in the section shall preclude any party requir-ed to attend, or any other person inter- ested, from shqwina that no dispute of the nature mentioned in Sub-section (IV exists or has existed, and that in such, a case the Magistrate shall cancel his preliminary order and all further proceedings thereon shall be staved. On plain reading of the section it is manifest that once the preliminary order is cancelled all further proceedings in the case have to be staved, or. in other words, the Magistrate ceases to have iurisdiction to deal with the question as to who was in possession of the land on the date of the preliminary order. Further, Thokchom v. Thangba. A.I.R. 1970 Manipur 12, is an authority for the propositions that the preliminary order can be cancelled only if the Magistrate feels satisfied that no dispute concerning the land involved exists ori the date when such a representation is made to him. or had existed before, that mere repre-, sentation of a party that there was not' dispute is not enough to iustifv the Magistrate cancelling the order, and that it is the finding of the Magistrate that the dispute does not exist at present or had not existed before which alone can provide him the legal sanction for can-1 cellation of the preliminary order. How--;, ever, surprisingly enough, in- the present case the Magistrate did not record' a finding that no dispute respecting the land had ever existed or was in existence between the parties. The relevant finding reached by the Magistrate was:
From perusal & discussion of the documents furnished by the 2nd party it can be reasonably decided that the 2nd party continues to be in actual possession of the land & it has not been disturbed. 1st party has not been in actual possession of the land. Naturallv there can be no apprehension of breach of peace unless' the 1st party disturbs the possession of the 2nd party without resorting to due course of law.
I remain unconvinced that these findings amount to stating that there was. no dispute between the parties in regard to possession of the land involved. It would not be out of nlace to mention that Rabindra Kumar, the first Party, had moved the police for taking' steps for forestalling the apprehended' breach of peace, the police on inquiry had reached the conclusion that there-was apprehension of breach of peace and so had approached the Magistrate for taking action Under Section 145. The Magistrate passed the preliminary order' on agreeing with the report of the police and thereafter Rabindra . Kumar requested the Magistrate for sale of the crops standing on the land which had earlier been attached. In face of this-formidable data, it was really bold of the Magistrate to take recourse to Sub- Section (5). At any rate, in the absence Nof a clear-cut finding that there had never been, nor was at present, a dispute of the nature mentioned in Sub-section (1) respecting the land in dispute. the Magistrate had clearly transgressed his jurisdiction in accepting the petition of Dharma Gour for droopine the uroceedngs.
5. There also appears to be substance in the contention of Shri Ghosh that Rabindra Kumar had not been even opportunity to oppose the praver made by Dharma Gour for dropping the proceedings. There is nothine on the record to indicate that notice of Dhar-;ma Gour's application dated 30th November. 1968, had been formally issued to Rabindra Kumar. Shri Choudhurv relied upon the orders dated 3rd and 4th of December, 1968. reproduced above, to support His submission that the Magistrate had given ample opportunity to Rabinda Kumar to oppose the :praver made in the application dated 30th of November. 1968. He also relied upon the observation in the impugned order that 'The learned Counsels on both sides discussed in length' in the -same connection. However. I remain unconvinced ' that Rabindra Kumar had 'been afforded an opportunity to oppose the praver for dropping the proceedings in the manner required by law. The 'Order dated 3rd December only savs that both the parties were present and the second party had been heard. It is not apparent in what connection that hearing had been held. The next order lated 4th December also suffers from -identical vagueness. The Quoted observation from the impugned order does not' make us wiser. A perusal of that 'order reveals that main attention was devoted to the discussion of the case on merits and the documents placed on record by Dharma Gour along with his -application dated 30th of November. 1968, were relied upon in that respect. Therefore, I feel safe in concluding that arguments were heard by the Magistrate on two days respecting the merits of the main case rather in regard to the praver made by Dharma Gour for terminating the proceedings.
6. I have stated above that Shri Choudhurv could not support the legal validity of the declaration made by the Magistrate that the second party is in possession of the land, nor of the direction given by him that the possession of second party shall not be disturbed until they are evicted from the land in -due course of law. In the case of Thok-ichom. A.I.R. 1970 Manipur 12 (supra) it I was held that the apprehension of breach of the peace being the basis of the juris- diction of the Magistrate . to proceed Under Section 145. he cannot make an order of the nature mentioned in Sub-sections (4) and (6) if he is satisfied that there is no such likelihood and as a con-sea uence he drops the proceedings under Sub-section (5). With the cancellation of the preliminary order, it was held further, the Magistrate becomes functus officio except, of course, to pass orders necessary to wind up the proceedings, and so he ceases to have iurisdiction to pass an order that one of the two contestants should not interfere with the possession of the other over the property in dispute. In other words, it was-pointed out. the Magistrate cannot simultaneously act both under Sub-section (5) and under Sub-section (4) read with Sub-section (6). and that once the Magistrate cancels the preliminary order. it befits him to ensure that none out of the parties arrayed before him aets an advantage at the expense of the other and that the ideai step to take on cancellation of the preliminary order under Sub-section (5) would be to restore the parties to the status auo ante. It cannot be gainsaid that in the present case the' Magistrate had acted both under Sub-section (5) as well as under Sub-section (6). He elaborately discussed the various documents filed by Dharma Gour along with his petition dated 30th of November. 1968, and on the basis thereof recorded the finding that the second party had been in possession of the land, for a long time. He declared further that Rabindra Kumar is a recorded raivat, while Dharma Gour is a korfa tenant, in respect of the land in dispute. The discussion done and the conclusions reached leave no scope for doubt on the point that the Magistrate had adjudged the merits of the case just as he would have done if the case had proceeded to its logical conclusion a'fter submission of the written statements, affidavits and documents by the parties in support of their rival claims. Obviously, the Magistrate could not have adopted that course while accepting the petition made by Dharma Gour under Sub-section (5) for dropping the proceedings.
7. A brief reference may now be made to the decision in Jhabboo v. Laxmi Naravan. : AIR1970All595 . which was cited by Shri Choudhurv in support of the impugned order. The relevant proposition enunciated in the case was that a Magistrate acting Under Section 145 has inherent iurisdiction to pass incidental orders with regard to disposal of the attached property after the proceedings have been dropped by' him under Sub-section ' (5). An earlier decision of Allahabad High Court in Emperor v. Raideo Singh A.I.R. 1948 All 425. was cited with approval. In the latter case, it was held that when proceedings are dropped Under Section 145 (5) on the ground that there never existed a dispute likelv to cause a breach of the peace, the Magistrate's -jurisdiction to act under the provisions of Section 145 altogether ends, and as such he can only pass an incidental order relating to the attached property- It was observed further that if the Magistrate enters into a minute examination as to the claims of the respective parties regarding the fact of actual possession on the date of the initial order, he will be doing precisely what he is not empowered to do. It is evident that neither the decision in the case of Jhabboo nor the proposition enunciated in the case of Raideo renders any support to the verdict given by the Magistrate respecting the merits of the dispute while dropping the case under Sub-section (5).
8. For the reasons stated above, I accept the recommendation made- by the learned Additional Sessions Judge and on cjuashing the order dated 11-12-1968 of the Magistrate remand the case to him with the direction that he should dispose it of afresh. He will, on summoning the parties, firstlv decide the fate of the application dated 30th of November, 1968. made by Dharma Gour. and if that application fails he shall proceed further with the case after allowing an opportunity 'to the parties to put in their written statements, affidavits and documents in support of their claims to the possession of the land in dispute. Nothing said in this order shall be deemed to have expressed any opinion on the merits of the application dated 30th of November, 1968, or of the dispute as to which of the two contestants was in possession of the land on 23-11-1968. the date of the preliminary order.