1. This is a reference under Section 438 of the Criminal Procedure Code made by the learned Sessions Judge, Parbhani, recommending that the order, dated 27-2-1956 passed by the learned Munsif Magistrate, Basmath-nagar, dismissing a complaint under Section 145 of the Criminal Procedure Code, made by the complainant Bhovrao Ganpatrao, should be reversed.
2. The facts are as follows: The aforesaid Bhavrao Ganpatrao appeared before the learned Munsiff Magistrate, Basmath-nagar, and lodged information under Section 145 of the Criminal Procedure Code stating that a dispute likely to cause a breach of the peace existed between him and the opposite side. Acting on the aforesaid information, the learned Magistrate came to the conclusion that there was such a dispute which was likely to cause a breach of the peace. Therefore, the learned Magistrate made an order under Section 145 (1) of the Criminal Procedure Code stating that he was so satisfied and required the parties concerned in the dispute to attend his court on a certain date. On that date, the complainant Bhavrao Ganpatrao was not present. The opposite side was present. The learned Magistrate, however, thought that he was competent to dismiss the proceedings because of the absence of the complainant Ganpatrao. Accordingly, he passed the impugned order. The complainant Ganpatrao then preferred a revision application to the learned Sessions Judge, Parbhani. The main contention which was urged by him was that the learned Magistrate, having taken cognizance under Section 145 (1) of the Criminal Procedure Code and having started proceedings thereunder, was not competent to dismiss the complaint and to terminate the proceedings because of the absence of the complainant. The learned Sessions Judge accepted the aforesaid contention and has accordingly made the reference under Section 438 of the Criminal Procedure Code.
3. in my opinion, the submission made by the complainant is correct. in fact, having regard to the provisions contained in Section 145 (1) of the Criminal Procedure, Code, it is erroneous to designate the informant us a complainant. When an information is laid before a Magistrate under Section 145 (1) the informant does not make a complaint of any offence. All that he docs is that he brings information to the notice of the Magistrate stating that there was an apprehension of a breach of peace. At that stage, the learned Magistrate has to apply his mind and decide whether, in fact, there was a reasonable apprehension of breach of peace or not. Once the learned Magistrate comes to that conclusion, then, further proceedings which he starts are not proceedings in the interest of any private party. The proceedings arc started by him in the interest of public peace, and therefore, so long as the apprehension of the breach of public peace subsists, it is the duty of the learned Magistrate to continue the proceedings and pass some suitable order which will prevent the breach of the peace. Therefore, the mere fact that, after the. preliminary order under Section 145 (1) of the Criminal Procedure Code is passed, the complainant is absent, does not mean that the proceedings should automaticalty terminate. Having regard to the formation of the opinion by the learned Magistrate that an apprehension of breach of peace subsisted, so long as an order under Sub-section (5) of Section 145 of the Criminal Procedure Code is not made by the learned Magistrate, it is the duty of the Magistrate not to terminate the proceedings but to proceed further under Sub-sectopm (4) of Section 145. That subsection is in mandatory terms. That Sub-sect ion follows Sub-sections (1), (2) and (3). Under Sub-section (1), the learned Magistrate has to pass a preliminary order. By that order, the learned Magistrate calls upon the parties concerned to put in tlieir written statements concerning their respective claims as regards the fact of actual possession of the subject-matter in dispute, and further requires them to put in such documents or to adduce the evidence of such persons as they may choose to rely upon in support of their claims. Thereafter, Sub-section (4) states that 'the learned Magistrate shall ..... peruse the statements, documents and affidavits, if any, so nut in, hear the parties and conclude the inquiry.' Therefore, Sub-section (4) does not leave any doubt that, after the preliminary order has been passed by the learned Magistrate, it is the duty of the learned Magistrate to peruse the documents and to conclude the inquiry. it is true that, if the provisions of Sub-section (5) of Section 145 of the Criminal Procedure Code apply. then, the preliminary order tan be cancelled, but it is important in this connection to note that the preliminary order can be cancelled only under one circumstance and one circumstance alone, that circumstance being that one of the parties to the proceedings apneared before the learned Magistrate and satisfied him that no such dispute as aforesaid existed or had existed. Therefore, in my opinion, the learned Magistrate I was wrong in terminating the proceedings which he bad started under Sub-section (1) of Section 145. in fact, what the learned Magistrate has done in the present case is that he has treated the informant Bhav-rao Ganpatrao as the complainant. As already stated by me, Bhavrao Ganpatrao was not a complainant, nor was he interested in the information which he gave, except to the extent that he became the medium for bringing it to the notice of the learned Magistrate that there was a likelihood of breach of peace. Once the learned Magistrate came to the conclusion that there was an apprehension of breach of peace, unless and until he was satisfied that no such apprehension reasonably existed, it was necessary for him to take all proceedings under Sub-section (4) and to pass suitable order, so that one or the other party may be prevented from committing a breach of the peace.
4. The aforesaid view which I have taken is supported by authority. I need only cite one authority on the subject. It is reported in Babu v. Shyam Singh ILR 1950 All 543. The relevant observations are to be found at pages 546 and 547. With great respect, I agree with the reasoning which has been given by the learned Judges of the Allahabad High Court in the aforesaid case.
5. For the aforesaid reasons, I accept the reference. I set aside the order of the learned Mun-siff Magistrate. I order that the further proceedings shall be started pursuant to the preliminaryorder passed by the learned Magistrate under subsection (1) of Section 145 of the Criminal ProcedureCode. Rule is made absolute.
6. Rule made absolute.