1. This is a reference made by the learned Sessions Judge of Agra, requesting this Court to set aside an order of a Magistrate purporting to have been passed under Section 145, Criminal P.C. The facts of the case are as follows: Certain dhobies made an application to the Joint Magistrate of Agra saying that they had a small plot of land on which they placed their tazias at the time of the Moharram and that one Hira Lal had built or commenced to build a wall on that plot, and when they objected was ready to assault them. They accordingly asked the Magistrate to take proceedings under Section 145, Criminal P.C. The Magistrate issued a notice without giving any reason, and then made a local inspection and heard evidence. He passed an order in which he stated that in his opinion the dhobis were in actual possession of the land, that Hira Lal should bring a suit in the civil Court and the wall which had been started should be left in its present condition. There is not in this order one word suggesting that there was any danger of a breach of the peace. In revision the learned Sessions Judge pointed out that the Magistrate had failed in his order in writing to state the grounds for his being satisfied that there was likely to be a breach of peace, as required by Section 145(1), Criminal P.C., and following certain rulings of this Court he held that this failure on the part of the Magistrate rendered the proceedings liable to be set aside. He also took certain other objections to the Magistrate's procedure. In reply the Magistrate referred to an unreported decision of this Court which is said to have laid down the principle that the failure of a Magistrate to state that he was satisfied from a police report that there was a likelihood of a breach of the peace cannot vitiate the proceedings. He went on to defend his manner of conducting the enquiry, and in the last words of his explanation for the very first time he suggests that there was proof that a dispute likely to lead to a breach of the peace existed.
2. There can be no question that the reported rulings of this High Court support the view that the provisions of Section 145(1) requiring a Magistrate to make an order in writing stating the grounds for his being satisfied that a dispute likely to cause a breach of the peace exists are mandatory, and this principle was affirmed in the case of Dan Prasad v. Ganesh  14 CrLJ 495 and more recently in the case of Banka Singh v. Gokul : AIR1927All286 . It appears to me that these rulings are not based upon a mere insistence on the letter of the section, but go to the root of the whole matter. Section 145 is provided in order that a Magistrate may prevent a breach of the peace arising from a dispute as to immovable property. He has no jurisdiction in such a matter, which primarily appertains to a civil Court, unlesss he is fully satisfied that there is a danger of a breach of the peace and this must therefore be put in the forefront of his proceedings and he must give the parties notice that it is to prevent a breach of the peace that he is taking action under the section. If he fails to do so, the primary intention of the section appears to me to be in danger of being lost, and in this case it clearly has been lost. The magistrate has concerned himself entirely with the question whether the dhobies have a better right to this plot than Hira Lai, and he has passed his orders with the intention of maintaining the right of the dhobies and forcing Hira Lal to make the necessary move in the civil Court. In my opinion, such action was only possible if the Magistrate was convinced that if he failed to do so, there would be a breach of the peace, where the Magistrate has entirely failed either in his notice or in his order to say that he is of that opinion and where it appears from the evidence, all of which I have read, that there is not a word about a breach of the peace, I must come to the conclusion that the whole proceedings are uncalled for, and as they are also contrary to the specific provisions of the Act, they should be set aside. I accordingly accept the reference and direct that the order of the Magistrate passed under Section 145, Criminal P.C., be set aside.