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Ganga Singh Vs. Raj Bahadur Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Ref. No. 65 of 1956
Judge
Reported inAIR1958All803; 1958CriLJ1369
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(1), 145(4) and 145(5)
AppellantGanga Singh
RespondentRaj Bahadur Singh and ors.
Appellant AdvocateD.N. Bhattacharji, Adv.
Respondent AdvocateRama Shankar Srivastava, Adv.
DispositionReference rejected
Excerpt:
criminal - cancellation of preliminary order - sections 145(4) and (5) of criminal procedure code, 1898 - magistrate justified to cancel the preliminary order - basis for cancellation can be statement from applicant to the effect that no quarrel had taken place. - - the learned magistrate being satisfied that such a dispute existed issued a preliminary order under sub-section (1), in response to which he appeared before him and led evidence. 2. it is provided under sub-section (1) that when a sub-divisional magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he must make an order in writing, stating the grounds of his being satisfied, and requiring the parties concerned in the dispute to attend his court and to put in written.....m.c. desai, j. 1. this is a reference made by the sessions judge of rae-bareli against an order of the sub-divisionalmagistrate, mandal, terminating proceedings under section 145 o the code of criminal procedure on the ground that there was no longer any apprehension of a breach of the peace. the applicant before us made a complaint to the learned sub-divisional magistrate to the effect that there existed a dispute relating to certain plots of land, which was likely to cause a breach of the peace. the learned magistrate being satisfied that such a dispute existed issued a preliminary order under sub-section (1), in response to which he appeared before him and led evidence. he then dropped the proceedings by the order sought to be revised. he said in his order that the question before him.....
Judgment:

M.C. Desai, J.

1. This is a reference made by the Sessions Judge of Rae-Bareli against an order of the Sub-DivisionalMagistrate, Mandal, terminating proceedings under Section 145 o the Code of Criminal Procedure on the ground that there was no longer any apprehension of a breach of the peace. The applicant before us made a complaint to the learned Sub-Divisional Magistrate to the effect that there existed a dispute relating to certain plots of land, which was likely to cause a breach of the peace.

The learned Magistrate being satisfied that such a dispute existed issued a preliminary order under Sub-section (1), in response to which he appeared before him and led evidence. He then dropped the proceedings by the order sought to be revised. He said in his order that the question before him was whether there was any apprehension of a breach of the peace or not, referred to the statement of the applicant himself to the effect that no quarrel had taken place regarding possession, and held that this statement proved that there was no apprehensioa of a breach of the peace and that there was no necessity of deciding which party was in possession.

The order of the learned Magistrate was quite illegal and I cannot help feeling that he adopted the short cut in order to prevent further delay in the case that had already been pending for more than a year. This is not the way to do justice. The applicant being aggrieved by the order brought the matter to the notice of the Sessions Judge, who referred the case to this Court for quashing the order. The reference came before one of us who, on account of a conflict among authorities, referred it to a Bench.

2. It is provided under Sub-section (1) that when a Sub-Divisional Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he must make an order in writing, stating the grounds of his being satisfied, and requiring the parties concerned in the dispute to attend his court and to put in written statement of their respective claims as respects the fact of actual possession. Sub-Section (4) is as follows :--

'The Magistrate shall, then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, ..... decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject.'

Under the proviso to the sub-section he is empowered to attach the subject of dispute in case of emergency. This sub-section means that after the parties have appeared before the Magistrate all that he has to do is to decide which of them, if any, was in possession of the subject of the dispute on the date of the order made under Sub-section (1); he has no other jurisdiction, not expressly conferred by subsequent clauses, and cannot go into the question whether the order passed by him under Sub-section (1) was justified or not. Then comes Sub-section (5) which is as follows :--

'Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final.'

This sub-section confers jurisdiction upon the Magistrate to cancel the preliminary order (e.g. the order made under Sub-section (1)), but only on the ground that the dispute involving a breach of the peace hasceased to exist or did not exist at all. If there existed a dispute at the time of the order but it did not involve a breach of the peace or if no dispute existed at all then, it means that a dispute involving a breach of the peace did not exist.

If such a dispute existed then but subsequently it has ceased to involve a breach of the peace, or if it has ceased to exist at all, it is a case of such a dispute ceasing to exist. In either circumstance the Magistrate has the power, coupled with duty, to cancel the preliminary order. In other words when it is proved to the satisfaction of the Magistrate that the dispute has ceased to be likely to cause a breach of the peace, he is obliged to drop the proceedings. But the essential question that arises, and that is frequently overlooked or erroneously answered, is of onus probandi.

The onus of satisfying the Magistrate that the dispute has ceased to exist or to be likely to cause an apprehension of a breach of the peace has been laid in clear words upon the opposite-party, i.e. the party other than the applicant (the party at whose instance the preliminary order was passed). The onus of satisfying the Magistrate that there existed such a dispute lay upon him and when he discharged the onus and the Magistrate issued the preliminary order, he is no longer required to prove subsequently that such a dispute existed or continues to exist.

He is not at all required to lead any evidence to prove that such a dispute existed or continues. If it did not exist or has ceased to exist, the onus is upon the opposite-party to lead evidence about it and it is only when he satisfies the Magistrate about it that the latter would be bound to drop the proceedings. A Magistrate, therefore, acts illegally if he drops the proceedings on the ground that the applicant has not led evidence to nrove that a dispute involving an apprehension of the breach of the peace existed and still continues.

The applicant had the onus of satisfying the Magistrate about the existence of such a dispute in order to confer jurisdiction upon him over the dispute; once the Magistrate assumed jurisdiction, he has only to inquire into the question of possession, but the law confers the right upon the other party to satisfy him that no dispute existed or exists at all or that it did not, or has ceased to, involve an apprehension of a breach of the peace.

The learned Magistrate was, therefore, wrong in saying that the question before him was whether there was any apprehension of a breach of the peace or not; the real question was whether the opposite party satisfied him that the dispute did not, or had ceased to, involve an apprehension of a breach of the peace.

3. In re Sambasiva Rao : AIR1954Mad1017 , Balakrishna Iyyar J. upheld an order of a Magistrate dropping proceedings on the ground that no breach of the peace could be apprehended in the near future. According to his view proceedings can be dropped on the Magistrate's being satisfied that no breach of the peace is apprehended. The same view was taken by Ramaswami J. in Velur Devas-thanam v. Sambandamurthi Nainer : AIR1952Mad531 , when he upheld a Magistrate's order cancelling the preliminary order on the ground that the dispute was not likely to cause a breach of the peace.

In State v. Shiva Ratan Singh, 52 Cri LJ 1 : (AIR 1951 Nag 201) (C), Karunamoy v. Kalka Prosad : AIR1950Cal369 , and Babu v. Shyam Singh, ILR 1950 All 543 (E), it was held that the Magistrate's jurisdiction is gone on his finding that there is no apprehension of the breach of the peace. In Abdul Rauf v. Mohd. Shafi : AIR1956All337 , Vishnu Datta Bhargava J. observed that a Magistrate has no jurisdiction to go into the question whether the dispute involved or still involves an apprehension of a breach of the peace and that his duty is simply to decide which of the parties was in possession on the date of the preliminary order. With great respect I disagree.

The learned Judge has not considered the provisions of Sub-section (5) at all and has not referred to any authority and the view taken by him is erroneous. In Mahadeo Singh v. Sukhdeo, 1956 All LJ 699 (G). Asthana J. held that when the opposite-party denies the existence of a dispute likely to cause a breach of the peace, the Magistrate's duty is to call upon 'the parties' to produce their evidence in support of their allegations regarding the likelihoodness.

This statement of law also is not borne out by the language of Sub-section (5), neither party is to be called upon to produce evidence, certainly not the applicant. The onus lies upon the opposite-party to satisfy the Magistrate about the non-existence of the likelihood and he has to discharge it without being called upon by the Magistrate to produce evidence. In Amritlal v. Nageswara Rao, AIR 1947. Mad 133 (H), referred to by Balakrishna Ayyar J. in the case of Sambasiva Rao (A) (Supra), it was said that continuance of a breach of the peace is not essential to confer power upon the Magistrate to pass a final order.

A dispute may not be said to be not likely to cause a breach of the peace simply because there has been no breach of the peace, but if it is no longer likely to cause a breach of the peace, the Magistrate is divested of jurisdiction to proceed further in the case and must drop the proceedings.

4. It must be pointed out that a dispute likely to cause a breach of the peace cannot be said to cease to exist merely because the Magistrate has attached the subject of the dispute; it can be said to cease to exist only if, after the release of the subject of the dispute from attachment, there will be no rival claims, as for instance when the matter has been settled privately. If the dispute will revive as soon as the subject of dispute is released from attachment, it is not a case of cessation of the dispute and if with the revival of the dispute an apprehension of a breach of the peace also will revive, the Magistrate cannot drop the proceedings.

5. In this case I find that the learned Magistrate placed the onus wrongly upon the applicant, but his finding that there is no apprehension of a breach of the peace does not seem to be wrong; it is supported by the applicants' own admission that no quarrel ever took place between the parties. The order terminating the proceedings cannot be said to be illegal or even improper. I note that the subject of dispute has been released from attachment and though two years have passed, nothing untoward has happened; this confirms the finding of the learned Magistrate.

6. In the result I would reject the reference.

A.N. Mulla, J.

7. I concur with the order proposed by my learned brother Desai, J. and broadly speaking I am in agreement with the view expressed by him, but there are certain aspects of interpretation of the relevant provisions of Section 145 Cr. P. C. with which I do not see eye to eye with my brother and so I am giving the reasons for my conclusions separately.

8. In my opinion in interpreting the provisions of a statute it is always desirable that the purpose of the enactment should be kept in view. Section 145 Cr. P. C. is really an incursion of the criminal courts in spheres of these disputes which should be appro-priately decided by the civil courts. The only justification for this intrusion is that the interests of order and peace are paramount and all other interests including the interests of the owners of immovable property are subservient to it.

The State cannot permit that riots should be committed and heads be broken merely because two contending parties hold different opinions about their claims to the possession and ownership of some im-moveable property. It may be that the owners of property are temporarily deprived of possession of what is rightfully their property and may also be subjected to other inconveniences, but all these considerations are subservient to the imperative necessity of preserving the peace.

The purpose for which Section 145 Cr. P. C. was enacted, if I may say so with profound respect, has been admirably illustrated by Hill J. in a Full Bench decision of the Calcutta High Court in Krishna Kamni v. Abdul Jubbar, ILR 30 Cal 155 at p. 195 (I). Hill J. observed:--

'In entering upon a consideration of the section it is, I think, important to bear in mind the purpose with which it was enacted. It occurs in that part of the Code which relates to the prevention of offences, and its object is to bring to an end by a summary process disputes relating to land etc. which are in their nature likely, if not suppressed, to end in breaches of the peace. The maintenance of the public peace was the object before the mind of the legislature and where that supreme object is in view there can be no question but that the convenience and even the rights of individuals must at times be sacrificed for its attainment.'

It is in the back ground of this purpose that we should interpret the provisions of section 145 Cr. P. C.

9. Another point which should be kept in mind is that Section 145 Cr. P. C. is a comprehensive section and not only includes the question that is to be decided by the Magistrate, but also contains the procedure which should be followed by the Magistrate in coming to his conclusions. The initiation of proceedings depends either upon a police report or other information to the effect that a dispute likely to cause a breach of the peace exists concerning any land etc.

The Magistrate has to determine at the very first stage whether this information or report is reliable and it is only when he is satisfied that it is reliable that he can start proceedings. In other words the very basis for Magistrate to assume jurisdiction is his subjective satisfaction that such a dispute which is likely to cause a breach of the peace exists. This subjective satisfaction must be his own and not that of any other person or authority. As observed by a learned Judge in : AIR1952Mad531 :--

'It is the Magistrate who should be satisfied that the apprehension is an existing one and an adequate one for taking action to avert the breach of the peace. Mere apprehension of the party or even of the Police or by a superior authority namely the District Magistrate is not sufficient ground for taking action.'

It may however be remembered that such a report or information alleges an emergency which requires emergent methods to deal with it and, therefore, the Magistrate has to act quickly and determine this question on the information which is supplied to him. He cannot make an exhaustive inquiry, for if he does so a breach of the peace might take place before he could pass a preliminary order.

In the very nature of things his preliminary order is almost of an ex parte character for it is either based on the report submitted by the police or on the application presented by a party. Up to that time he gets no opportunity of taking evidence on the point whether the allegation contained in the report or application is maintainable or not. I am, therefore, of the opinion that the preliminary order passed by the Magistrate is only a tentative order based on the information available to him at the time when the order was passed and is therefore open to be revised by him when he gets fuller information.

If at any stage the Magistrate finds that the dispute placed before him creates no likelihood of an apprehension of a breach of the peace, there is no reason why he should not cancel his first order and declare that the criminal courts are not entitled to decide any question in connection with this dispute. As observed by me above, the very basis of the jurisdiction of the criminal courts is the likelihood of a breach of the peace and where this condition which is necessary to confer jurisdiction is found to be absent, the Magistrate has no option but to drop the proceedings and stay his hands.

I am, therefore, of the opinion that the legislature did not intend to give any sanctity to the preliminary order issued under Section 145 (1) Gr. P. C. by file Magistrate and it was left to him to revise this order if he found on further information or evidence that his assumption of jurisdiction was not justified. Subsection (5) of Section 145 Cr. P. C. clearly gives this power to the Magistrate. It runs as follows :--

'(5) Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under subsection (1) shall be final.'

10. A plain reading of this sub-section shows that the parties before the Magistrate are entitled to prove before him that no such dispute which is likely to cause a breach of the peace exists or has existed. This right is given not only to the parties before the Court, but also to any other person who is interested. In my opinion Sub-section (5) is only an enabling clause and not a disabling clause. It specifically mentions that the parties and interested persons can contend before the Magistrate that no apprehension of a breach of the peace either exists or has existed.

It does not limit the range of the sources of information which may induce the Magistrate to come to the conclusion that the likelihood of a breach of the peace does not exist or had not existed. The Magistrate can act upon information supplied to him by other persons apart from the parties who produce evidence before him. As observed by me above, the entire scheme of Section 145 Cr. P C is based upon the subjective satisfaction of the Magistrate. This subjective satisfaction may be reached from other reliable information and circumstances apart from the evidence placed before him by the parties.

The language of Sub-section (5) cited above does not restrict the Magistrate from seeking his information from other sources, if he so desires. It was observed in Narasayya v. Venkiah, AIR 1925 Mad 1252

'Clause (5) of Section 145 provides for a special case where as the Magistrate is proceeding with the trial of the question of possession, the parties to the proceedings or even other persons who are interested are given the right to show that no dispute likely to cause a breach of the peace exists or has existed. The existence of this clause does not take away the power of the Magistrate himself to drop proceedings if he is satisfied that there is no further likeli-hood of the breach of the peace.'

11. This view was again followed in another Madras decision in : AIR1952Mad531 . It seems to me that the very basis of jurisdiction is an apprehension of a breach of the peace. It would be against the very purpose of the enactment if the preliminary order passed by the Magistrate is to be treated as final and the Magistrate is stopped from reconsidering the question of fuller information whether there was really an apprehension of a breach of the peace or not.

It would amount to make the Magistrate feel an apprehension which as a reasonable person he finds does not exist. In my opinion the preliminary order under Section 145 (1) is not meant to operate as an 'estoppel' and the legislature never intended that the Magistrate should decide the question of possession of disputed property in a case in which be has come to the conclusion that there is no likelihood of any breach of the peace.

12. That a Magistrate can cancel the preliminary order as soon as he finds there is no apprehension of a breach of the peace is a proposition which is accepted by all the High Courts of India. The leading case on this point is 'Minindra Chandra Nandi v. Barada Kanta Chowdhry, ILR 30 Cal 112 (K). It is a Bench decision and it has been followed by a large number of subsequent decisions given by the various High Courts of India. The proposition laid down in this decision, to the best of my knowledge, has not been dissented from in any decision. The learned Judges observed :--

'A Magistrate has jurisdiction to cancel an order passed under Sub-section (1) of Section 145 of the Criminal Procedure Code and to stay proceedings if he becomes satisfied, whatever the source of information may be, that that the state of things does not exist, which alone would give jurisdiction to proceed with the inquiry.'

Proceeding further the learned Judges observed at page 115 :--

'The procedure provided by Section 145 is intended solely for the purpose of preventing a breach of the peace where a dispute exists concerning any land, or water or the boundaries thereof, which dispute, if no proceedings were taken, would be likely to cause a breach of the peace. The institution of such proceedings is a matter entirely within the discretion of the Magistrate. The existence of a dispute likely to cause a breach of the peace is a condition precedent absolutely necessary to give the Magistrate jurisdiction to enter upon an inquiry as to possession.

There is a current of rulings of this Court by which it has been held that it is a necessary preliminary condition to proceedings under Section 145, that a Magistrate, acting under the provisions of that section, shall record an order stating the grounds of his being satisfied that a dispute likely to cause a breach of the peace in fact exists. Any inquiry as to possession that is made under the provisions of that section is made not for the purpose of strengthening the position of the one party or of the other party in the dispute between them, but because such an inquiry is necessary for the making of an order under Sub-section (6) declaring the party in possession to be entitled to retain possession until evicted from the property in due course of law, and forbidding all disturbance of such possession, until such eviction.'

13. The observations quoted above bring another important aspect to the front. When a Magistrate starts proceedings under Section 145, Cr. P. C., he is not doing so to decide any question inter se between the parties to the dispute, but he is only concentrating on the question whether this dispute is likely to cause a breach of the peace or not. A party to a proceeding under Section 145 Cr. P. C. is not in the posi-tion of a plaintiff in a civil suit and it has no right that the Magistrate must give a decision upon the question of possession.

If the Magistrate finds that there is no apprehension of a breach of the peace, no private party has any locus standi to contest the propriety of his refusal to make an inquiry into the question of posses-sion. I have cited these observations to stress the point that the question of the likelihood of a breach of the peace is a question which can he considered by a Magistrate at any stage of the proceedings and the preliminary order passed by him does not stop him from coming to a different conclusion at any subsequent stage on the basis of better evidence or better information.

The view quoted above was followed in another Bench decision in Abdur Rahrnan Bhuia v. Dinesh Haldar : AIR1929Cal328 observed :--

'There is nothing in Sub-section (5) to Section 145, Cr. P. C., which has the effect of limiting or restricting its operation to the earlier stages of the proceeding. The sub-section appears to empower the Magistrate at any stage to cancel the proceeding if he is satisfied that no likelihood of a breach of the peace exists. J am further of opinion that no private party, whether he be a party before the Court, or not, has any locus standi to contest the propriety of the Magistrate's order.'

To the same effect are the observations of Suhra-wardy J. at page 401 (of Cal WN) : (at p. 329 of AIR) :--

'Referring to the wording of Clause (5) it is clear that the Magistrate shall cancel the order initiating the proceedings if he is satisfied at any stage of the case that no such dispute exists. This the Magistrate is entitled to do at any stage of the case though words are not expressly used in the section. . . '

14. The view expressed above has been followed in a large number of cases. Some of these cases are : Kamulammal Avargal v. Vavu Rowthar 17 Cri LJ 138 : (AIR 1917 Mad 237 (1)) (M), Suryana-ravana v. Ankineed Prasad ILR 47 Mad 713 : (AIR 1924 Mad 795) (NX Muhammad Khandu Sarkar v. Sadak Ali Sheikh 25 Cri. LJ 291 (1) : (AIR 1923 Cal 577) (O), AIR 1925 Mad 1252 (J), : AIR1952Mad531 and Bhaggoosingh v. Sanoman Singh : AIR1954All13 : (AIR 1951 Nag 201) (C).

15. To the same effect are the decisions given by our own High Court. These decisions are : ILR 1950 All 543 (E). Gangadhar v. State : AIR1952All580 and Dulla v. The State. : AIR1953All341 .

16. In ILR 47 Mad 713 : (AIR 1924 Mad 795) (N) cited above the learned Judge went to the length observing at page 715 (of ILR Mad) : (at pp. 795-96 of AIR),

'When the Magistrate is able to act on a police report or other information in starting proceedings under section 145, I do not see why he should not stay further proceedings on similar information without being obliged to record such evidence as the parties may produce with the same formality as he would have done if he had gone on with his inquiry instead of dropping it.'

17. A Bench of this Court in ILR 1950 All 543 (E) made some illuminating observations. The learned Judges observed at page 547 :

'Sub-section (5) makes it quite clear that the order under Sub-section (1) is final unless it is cancelled. That is to say, proceedings under Section 145 can only be terminated if the Magistrate is satisfiedthat there is no apprehension of a breach of the peace and unless he is so satisfied he must carry the proceedings to their proper conclusion 'in the interests of the state'.'

I have underlined (here in ' ') the last few words of the extract quoted above, because earlier in this decision the Judges clearly stated that there can be a reason why the applicant no longer wants the court to decide the case as he might have collected sufficient force to overawe his opponent and is, therefore, anxious to terminate the proceedings as quickly as possible. He may, therefore, choose to absent himself and urge that there is no apprehension of a breach of the peace so that the proceedings may be terminated. Clearly the applicant cannot be allowed to do so.

The observations would thus indicate that even the applicant can satisfy the Magistrate that an apprehension of a breach of the peace no longer exists and it is not correct to say that it is only the opposite-party who has to satisfy the Magistrate on this point. As observed by the learned Judges at another place (page 548):

'Both parties are exactly on the same footing with regard to the production of evidence. Both parties, even the applicant may show under Sub-section (5) that no apprehension of any breach of the peace exists.'

18. I am, therefore, of the opinion that the Magistrate is entitled to reconsider the preliminary order passed by him in the light of the additional evidence or information that comes to him and this may come to him from any source and it cannot be confined merely to the evidence produced by the contending parties before him. He can do so at any stage of the proceeding and merely because this power of cancellation is given in Section 145(5) it does not follow that the procedure of Section 145 (4) must be completed before this power can be exercised.

19. It is a common rule of prudence that where judicial orders are passed on the subjective satisfaction of any court, they should be passed on reasonable grounds and this -subjective satisfaction cannot be permitted to be reached arbitrarily. Therefore, where the record discloses that the satisfaction reached by the Magistrate is justifiable, the High Court should not interfere with the order passed by the Magistrate.

On the other hand where this subjective satisfaction is reached arbitrarily and the record does not indicate any good reason why the Magistrate reached a particular conclusion, the High Court would be justified in interfering with the order passed by the Magistrate. The High Court interfered with the order of the Magistrate because it came to the conclusion that the Magistrate dropped the proceedings without any justifiable cause in the following cases : AIR1954All13 and Sastu Sahu v. Nathuni Thakur, 26 Cri. LJ 105 ; (AIR 1924 Pat 689) (S).

30. Randhir Singh, J. observed in : AIR1954All13 as follows :

'A perusal of these rulings shows that a Magistrate has a right to terminate proceedings under Section 145 if he is satisfied that there was no further likelihood of a breach of the peace or that there was initially no apprehension of a breach of the peace. It should, however, appeal from the record that the Magistrate had satisfied himself on this point. In the present case the order of the Magistrate does not show that he had received any information from any source or had otherwise satisfied himself that there was initially no apprehension of a breach of the peace or that subsequently the apprehension of a breach of the peace had ceased to exist.'

The duty of the Magistrate to terminate proceedings as soon as he finds that there is no apprehension of breach of the peace was stressed in : AIR1953All341 , Beg, J. observed :

'Once it is found that there is no danger of a breach of the peace the foundation for action under Section 145, Criminal P. C. disappears. The Magistrate has no jurisdiction to proceed further and must immediately stay his hand. He cannot convert himself into a Civil Court and go on to decide the case on merits or to give a finding either on the question of title or on the question of possession for any ulterior or subsidiary purpose. The only course open to him is to cancel his initial order and to quash all proceedings under Section 145, Criminal P. C.'

21. In : AIR1954Mad1017 , Balakrishna Ayyar J. observed :

'I can see nothing in the section which precludes the Magistrate from dropping proceedings when he is satisfied that no breach of the peace is likely to occur.'

At page 1018 the learned Judge went on to observe:

'It will be noticed in the first part of the subsection the words used are 'that no such dispute as aforesaid exists or has existed.' The expression 'has existed' would relate to a point of time anterior to that on which the party seeks to satisfy the Magistrate under this Sub-section. The word 'exists' would relate to the time at which the party seeks to satisfy the Magistrate about the absence of a dispute. A party may be able to satisfy the Magistrate that no dispute exists in one or more of a variety of ways.

The contention that once proceedings are commenced under Section 145, the Magistrate must go on to the final end and decide who was in possession will be shown to be incorrect by one illustration.'

The learned Judge then gave the illustration and then doubted the decision given in AIR 1947 Mad 133 (H). In this decision Kuppuswami Aiyar J. had observed.

'This is not a case in which matters should have to be dropped by reason of Section 145 (5). It is only if there has been a subsequent settlement or if the petitioner agreed to give up the lease hold right and not claim to get back possession of the property, action can be taken under Section 145 (5)'.

It was observed by Balakrishna Ayyar J. that the observations of Kuppuswami Aiyar J. restricted the range on the basis of which proceedings could be dropped under Section 145 (5).

22. Applying the rule of law that emerges from these decisions I have only to see whether the Magistrate when he dropped the proceedings in this case acted on information or evidence on the record or not. When I referred this case to a Bench I hod a feeling that the Magistrate has acted arbitrarily and the sudden termination of these proceedings was not justifiable. My brother Desai, J. in his decision has given the reasons why the Magistrate dropped these proceedings and I agree with him that the Magistrate had material on [he record to come to the conclusion that in these circumstances there was no likelihood of any apprehension of a breach of the peace.

I also agree with my brother that the view taken by a learned Single Judge of this Court in : AIR1956All337 appears to be erroneous, with all respect to the Judge. The learned Judge did not cite any authority in support of his conclusions and it appears that the provisions of Sub-section (5) escaped his attention.

23. I, would, therefore, reject this reference.

24. BY THE COURT : For reasons stated inour judgments we reject the reference.


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