Anantanarayana Ayyar, J.
1. This is a reference by the learned Chief City Magistrate-cum-Additional Sessions Judge, Hyderabad recommending that orders of the learned Munsif Magistrate, Hyderabad West, dated 17-10-1963 be set aside and that the Munsif Magistrate be directed to proceed with the enquiry pending before him in M. C. No. 24 of 1963 after issuing preliminary order as contemplated under Section 145(1) Or. P. C.
2. The relevant facts are as follows: Amar Jabari and another (hereafter referred to as party No 1) filed a petition disclosing material contemplated under Section 145 Cr. P. C. before the competent Executive Magistrate (hereafter referred to for convenience as the Revenue Divisional Officer). He called for report from the Police and passed an order dated 11-10-1958 for attachment. Subsequently, parties produced material before him and he passed a final order on 11-12-1958 declaring the first party to be in possession of certain properties the second party who were respondents in the petition under Section 145 Cr. P. C. to be in possession of certain other properties and some third parties, who were not parties to the petition, to he in possession of some properties. He ordered delivery of the properties and accordingly, delivery was effected on 18-12-1958. The first party felt aggrieved with this order and filed Crl. R. P. No. 29 of 1959 before the learned Additional Sessions Judge, Hyderabad. The latter made a reference to this Court saying that the final order of the Revenue Divisional Officer had to be set aside because of various defect; one of them was that there was no preliminary order passed as contemplated under Section 145 Cr. P. C. This Court accepted the reference in Crl. R. C. No. 2S7 of 1959 and passed order dated 13.12-1960 as follows:
'The order passed by the First Class Magistrate Western Division, Hyderabad, in proceedings before him under Section 145 Cr, P. C. has been questioned on the ground that there was no preliminary order as contemplated under Section 145 Cr. P. C. and that consequently no statements were filed by the parties ......
As the order of the First Class Magistrate suffers horn these defects, in my view, it is not sustainable. The reference is accepted. The order of the First Class Magistrate is set aside. The First Class Magistrate will take the case on file and dispose of it according to law.' Subsequently, the Revenue Divisional Officer and First Class Magistrate (Executive) Hyderabad West, Shri T. Narayana Reddy passed an order dated 4-11-61 as follows;
........the Hon'ble High Court setaside the order of the First Class Magistrateon the ground that the (no) preliminary orderwas passed as contemplated under Section 145 Cr. P. C. and that no enquiry was made about whichparty was in possession . .
Under G. O. No. 3106. Public (Separation) Department dated 9th September 1949 cases under Section 145 Cr. P. C. were allocated under the head 'concurrent jurisdiction of both Executive and Judicial Magistrates'. In para 18 of the same G. O. it was clarified that where an enquiry becomes necessary the case will be transferred by the Magistrate to the appropriate Sub Divisional Magistrate .....
In this case the parties are contesting about the actual possession and an enquiry is necessary. Enquiry in such cases will therefore be conducted be the Judicial Magistrate. It is tint correct to hear the case in this Court....
The case may be transferred to the District Magistrate, Hyderabad for onward transmission of this case to the M. M. Court, West Hyderabad for disposal.'
The word 'the' and not the word 'no' is found in the original order itself. Obviously, the word 'the' is a mistake for the word 'no' which must have been meant and which has been put by me within brackets. Unfortunately, though the learned Revenue Divisional Officer and first class Magistrate (Executive) Hyderabad West clearly understood the order of this Court is having set aside the order of the First Class Magistrate on He ground that no preliminary order had been passed as contemplated under Section 145 Cr. P. C., he failed to rectify the defect by passing a preliminary order. He only considered the ground that no enquiry had been made as to which party was in possession and observed, regarding that ground, that when enquiry became necessary the case had to be transferred to the District Magistrate for transmission to the appropriate Sub Divisional Magistrate. The District Magistrate also failed to notice this defect in the order of the First Class Magistrate and transferred the case to the file of the Sub Divisional Magistrate namely, the Munsif Magistrate, Hyderabad West.
3. But the second party noticed this defect and filed M. P. No. 30 of 1963 before the learned Munsif Magistrate praying for passing of a preliminary order. The learned Munsif Magistrate rejected that petition by his order dated 17-10-1963 in which he observed as follows:--
'On a perusal of the M.C. File it is evident that the learned Executive 1st Class Magistrate did not pass the formal preliminary order as required u/s. 145 Cr. P. C. yet on 14-10-58 he made an order that he was satisfied that a dispute likely to cause breach of the peace existed concerning the land in question between the parties so the land should be attached and on 17-10-58 he directed to issue the summons to the parties in compliance of which the parties filed the written statements and affidavits. Under G. O. 3106 cited above the Executive Magistrate has to satisfy himself only this much that whether there existed a dispute likely to cause a breach of the peace or not and the rest of the enquiry has to be made by the Judicial Magistrate regarding possession. It is no doubt true that the Executive Magistrate must have made an order to this effect also that the parties should put in such documents or adduce, by putting in affidavits, the evidence of such persons as they rely upon in support of their claim, yet in my opinion the order directing the parties to put in written statement and affidavits if any can be made now by the Judicial Magistrate as the Hon'ble High Court directed the Magistrate making the enquiry to dispose of the case according to law. Had the Executive Magistrate not taken the cognizance of the case and not satisfied himself about the dispute likely to cause breach of the peace then this Judicial Court would have not taken the cognizance of this case and pass an order under Section 145(1) Cr. P. C. directing the parties to put in further written statements.'
4. On the same day i.e. on 17-10-1963 the learned Magistrate passed an order on the docket sheet as follows:
'M. P. No. 30 of 1963 is disposed of and It hag been held that this court if competent to proceed with the enquiry. On 14-10-1938 the Executive Magistrate, after satisfying himself that a dispute likely to cause a breach of the peace existed between the parties, concerning the land referred to in the application made by the 1st party under Section 145 Or. P. C. took cognizance of the case and in view of the emergency had attached the land in dispute. In compliance with the order of the Hon'ble High Court the formal preliminary order has to he passed. Hence the parties are directed to put in further written statements and documents and affidavits if any for they had already submitted them though no specific orders were issued to that effect.'
5. The first party filed M. P. No. 20 of 1963 praying for attachment of the properties. On the same day i.e., 17-10-1963 the learned Munsif if Magistrate passed an order attaching the properties. It is against this order of attachment dated 17-10-1963 that the second party filed Crl. R. P. No. 121 of 1963.
6. The learned Additional Sessions Judge has expressed his view in his reference as follows:
'The true position now is that there is no preliminary order at all and it was for that reason that the matter was remitted to the Revenue Divisional Officer so that a preliminary order may be passed as required by law. That was not done and that has not been done as yet. There cannot be a proceeding under Section 145 Cr. P. C. without a preliminary order. The passing of that order before the commencement of the proceedings is a condition precedent and the tact that it came to be passed later on does not validate a proceeding which was ab initio void.....
The entire proceedings are void for the reason that there has been no preliminary order in the case as required under law.' The order of this Court dated 13-12-1960 in Crl. R. C. No. 287 of 1959 makes it clear that one of the reasons on which the revision was allowed was that no preliminary order under Section 145 Cr. P. C. had been passed.
7. This aspect in the order has been under stood by every one concerned including Sri Narayan Reddy, Revenue Divisional Officer, who passed his order dated 4-11-1961 and by the learned Munsif Magistrate.
8. Paragraph 18 of G. O. Ms. No. 3106, Public (Separation) Department dated 9th September 1949 runs as follows;
'Chapters X and XII -- In cases falling under these Chapters, the Judicial Magistrate will take no action in the first instance. The public and police will go to the concerned Executive Magistrate and if he considers no action is necessary or if his directions are complied with without contest, the proceedings will automatically end. If the party directed to show cause decides to do so and an enquiry becomes necessary, the case will be transferred by the District Magistrate to the appropriate Sub Divisional Magistrate.'
The first portion of this G. O. makes it clear that action in the first instance i.e.. by way of pawing order under Sub-section (1) of Section 145 Cr. P.C. will not be by the Judicial Magistrate. Such action including direction to the parties requiring them to put in written statements is to be done only by the Executive Magistrate. The last sentence in this G. O. makes it clear that transfer to the Sub Divisional Magistrate (Munsif-Magistrate) will be done only if the party which has been directed to show cause decides to do so and, therefore, the enquiry becomes necessary. Consequently, there cannot be any transfer before a party is directed to show cause. If the party, which is directed by the Executive Magistrate to show cause, complies with his directions and from the compliance it is found that there is no contest with the result that no enquiry becomes necessary, the proceedings will automatically end and there will be no transfer.
9. The order passed under Section 145 Cr. P. C. by a competent Magistrate is commonly an order which has to contain two elements namely (1) stating the grounds of that Magistrate being satisfied from a Police report or other information that a dispute likely to cause a breach of the peace exists; and (ii) requiring the parties concerned in such dispute to attend his Court In person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claims. As decided by order of this court in Crl. R. C. No. 287 of 1959 and as agreed by all concerned, the order dated 14-10-1958 which the Revenue Divisional Officer had passed contained the first element but not the second element. In the order passed by the learned Munsif Magistrate dated 17-10-1963, he mentioned that on 14-10-1958 the Revenue Divisional Officer felt satisfied regarding the first element and then he (Munsif Magistrate) proceeded to give direction which is the second element. The learned Munsif Magistrate proceeded like this because,, in his opinion, he as a Judicial Magistrate could pass an order containing the second element alone though he knew that the Executive Magistrate ought to have included the direction containing the second element in his order along with me first element.
10. The learned Additional Sessions Judge has, in his order of reference, mentioned as follows:
'There is, however, another order under date 17-10-58 which is really the one contemplated by Section 145(1) Cr. P. C'. and that came to be passed three days after the earlier order dated 14-10-1958 which is an order of attachment That was the reason why ray learned predecessor made a reference to the High Court and the revision was accepted.....' Really there was no order dated 17-10-1958 which was a valid and complete order under Section 145(1) Cr. P. C. One main ground on which the learned additional Sessions Judge made reference to this Court in Crl. R. P. No. 29 of 1959 was that there was no preliminary order as contemplated in Section 145(1) Crl. P. C. and this Court agreed with him and on that basis, passed order in Crl. R. C. No. 287 of 1959 setting aside the final order of the Revenue Divisional Officer and directing fresh disposal. That order of this Court has become final and is binding on the parties. I have to give effect to it. In view of that order, the Revenue Divisional Officer, Shri T. Narayana Reddy was bound to pass a preliminary order under Sub-section (1) of Section 145 in the first instance. The other portions of the reference by the learned Additional Sessions Judge indicate that he himself took the view that no valid preliminary order under Section 145(1) had been passed at all -- vide the portion already extracted above.
11. The advocates on both sides are agreed that no order of the nature of a complete and valid preliminary order was passed by the Revenue Divisional Officer on 17-10-1958. There is no such order in the file. But, there is an order of the year 1958 in the file which is a warrant of attachment. It is an order under Section 146 Cr. P. C. For, it runs as follows;
'Whereas it has been made to appear to me ....... and whereas I am unable to satisfy myself as to which of the parties was in possession as aforesaid......'
At the top of the order, it is mentioned as follows:
'See proviso 3 to Sub-section (4) or the Section 145 Code of Criminal Procedure (Act V of 1898).'
12. The order of this court dated 13-12-1960 in Crl. R. C. No. 287 of 1959 in effect amounted to a decision that an order which contains the first element alone is not a valid preliminary order under Section 145(1) Cr. P. C. because it does not contain both the elements. It follows that an order which contains the second element alone would not be a valid and complete preliminary order. The order of the learned Munsif Magistrate dated 17-10-1963 contains the second element alone. It would be a complete preliminary order, apart from the question of validity, if it contained the first element also i.e., if the learned Munsif-Magistrate had mentioned that he was satisfied that a dispute, which was likely to cause breach of the peace, existed in the manner mentioned in Section 145(1) Cr. P. C. His mentioning in the order dated 17-10-1963 (hat the Executive Magistrate had on 14-10-1958 satisfied himself that a dispute likely to cause the breach of peace existed at that time is not a sufficient compliance under the provisions of Section 145(1) Cr. P. C.
13. The advocates on both sides agree that the true object and purpose of the order of this Court dated 13-12-1960 in Crl. R. C. No. 287 of 1959 was that the Executive First Class Magistrate viz., the Revenue Divisional Officer had not passed a proper preliminary order as required by Sub-section (1) of Section 145 Cr. P. C. and that he should pass such an order to dispose of the case according to law. They also agree that the Executive First Class Magistrate did not comply with the above order and the requirements of the law and that it is necessary that the case should be transferred back to the Executive First Class Magistrate for acting in compliance with the above order. I agree with them and find that the order of transfer from the file of the Executive First Class Magistrate to the file of the Judicial Magistrate viz., the Munsif-Magistrate made by the District Magistrate was not done at a proper stage.
14. I find that the proceedings before the learned Munsif-Magistrate are vitiated for want of a proper preliminary order. Consequently, I set aside the order of the learned Munsif-Magistrate dated 17-10-1963 in M. P. No. 30 of 1963 directing the parties to put in further statements and the order in M. P. No. 20 of 1963 attaching the properties. I transfer the case back to the file of the Executive First Class Magistrate, Hyderabad West for fresh disposal in accordance with law and in the light of the observations made above.
15. The reference is accordingly acceptedand the mutter is remanded. The case will beexpedited.