B.N. Misra, J.
1. The first party member in a proceeding under Section 145, Cr. P. C. is the petitioner and the present opposite parties are the members of the second party.
2. On 13. 8. 1982, upon consideration of a police report from the officer-in-charge of Jatani P. S., the learned Executive Magistrate initiated a proceeding under Section 144 Cr. P. C. against the opposite parties and restrained them from entering upon the disputed property. On 25.9.1982 the learned Magistrate made the restraint order absolute. There after on 13.10.1982, after hearing counsel on both sides, the learned Magistrate converted the proceeding to one under Section 145 Cr. P. C. and issued a preliminary order under Section 145(1). Written statements were filed by both the parties and oral evidence was also adduced by the petitioner. Finally by order, dated 24.12.1982 the learned Magistrate declared that the petitioner was in possession of the disputed property and was entitled to retain possession until evicted in due course of law. Against this order of the learned Magistrate the opposite parties preferred Criminal Revision No. 7/21 of 1984/83 before the learned Sessions Judge, Puri. By his order, dated 20.8.984, the learned Additional Sessions Judge allowed the revision and set aside the order, dated 24.12.1982 passed by the learned Magistrate. This order of the learned Additional Sessions Judge is under challenge in this revision.
3. In para 3 of the impugned order the learned Sessions Judge has observed.
'The proceeding Under Section 145 Cr. P.C, started on the same record of the proceeding Under Section 144 Cr. P.C., simply because the 1st party filed a petition on 16.12.1982 for appointment of receiver to administer the suit property and collect rent from the tenants of the rented houses.'
Further, according to the learned Sessions Judge, the grounds taken by the first party in his petition did not disclose an immediate apprehension of breach of peace and could not have been the basis for initiation of a proceeding under Section 145, Cr. P.C. The aforesaid observation of the learned Sessions Judge and his conclusion cannot be supported. Conversion of a proceeding under Section 145, Cr. P.C. to one under Section 145, Cr. P.C. has always been judicially acknowledged as legal provided that the requirements of Section 145, Cr. P.C. are satisfied at the time of conversion. Next, in A. I. R. 1981 S.C. 18 : (Rajpati v. Bachan and Anr.), the Supreme Court has observed :
'It is therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of Sub-section (5) of Section 145 of the Code of Criminal Procedure. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under Sub-section (6) of Section 145. As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under Sub-section (5) of Section 145 nor was such a case set up by any party before the Magistrate or before the High Court. Further, it is well- settled that under Section 145 it is for the Magistrate to be satisfied regarding the existence of a breach of the peace and once he recorded his satisfaction in the preliminary order, the High court revision cannot go into the sufficiency or otherwise of the materials on the basis of which the satisfaction at the Magistrate is based. In R. H. Bhutani v. Miss Mani J. Desai (1969) 1 SCR 80 : (AIR 1968 S.C. 1444), this Court pointed out as follows :
'The section requires that the Magistrate must be satisfied before initiating proceeding that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied on these two conditions, the section requires him to pass a preliminary order under Sub-section (l) and thereafter to make an enquiry under Sub-section (4) and pass a final order under Sub-section(6). It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. The enquiry under Section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.........The High Court in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate.'
XX XX XXAssuming, however, that there was an omission on the part of the Magistrate to mention in his final order that there was breach of the peace, that being an error of procedure would clearly fall within the domain of a curable irregularity which is not sufficient to vitiate the order passed by the Magistrate, particularly when there is nothing to show in the instant case that any prejudice was caused to any of the parties who had the full opportunity to produce their evidence before the Court. It was therefore not correct on the part of the High Court to have interfered with the order of the Magistrate on a purely technical ground when the aggrieved party had a clear remedy in the Civil Court.'
As pointed out in the aforesaid decision, once the Magistrate is satisfied regarding the existence of a breach of the peace and has recorded his satisfaction in the preliminary order neither the High Court nor the Sessions Judge in revision can go into the sufficinacy or otherwise of the materials on the basis of which the satisfaction of the Magistrate is based. Therefore, in the present case the impugned order cannot be sustained and must be set aside. Further, the learned Sessions Judge has committed a serious error of record in noting in paras 2 and 3 of his order that the 144 Cr. P. C. proceeding was converted into a proceeding under Section 145, Cr. P. C. on 24 11.1982. Examination of the L. C. R. shows that the date on which the conversion was made by the learned Magistrate was 13.10.1982 and not 24.12.1982 as recorded by the learned Sessions Judge.
4. On a perusal of the records of the learned Executive Magistrate it is noticed that before passing his final orders in the 145 Cr. P.C. proceeding on 24.12.1982, he had not given adequate opportunity to the opposite parties to put forward their case on merits. According to the order-sheet dated 21.12.1982, the learned Magistrate pointed out to the counsel appearing for the parties that the petition dated 16.12.1982 filed by the petitioner for appointment of receiver was pending disposal and therefore counsel should 'argue out or that on 23.12.1982. On 23.12.1982, the learned Magistrate directed that the matter should be put up on 24.12.1982. In his order dated 24.12.1982 the learned Magistrate did not confine his decision to the question of appointment of a receiver has instead decided the case on merits and declared the petitioner to be in possession of the disputed property. It has been rightly pointed out by the learned counsel appearing for the opposite parties that since the case had been posted by the learned Magistrate only for the purpose of considering the question of appointment of a receiver, the members of the second party had no notice that hearing of the main case on merits was going to take place on 24.12.1982. This objection raised on behalf of the opposite parties is valid and must be upheld. In these premises, it is necessary for the ends of justice that the order, dated 24.12.1982 passed by the learned Magistrate should also be set aside and the matter remitted for a fresh decision.
5. Accordingly, the revision is allowed. The order, dated 20.8.1984 passed by the learned Sessions Judge and the order, dated 24.12.1982 passed by the learned Magistrate are set aside. The case is remitted to the Court of the learned Executive Magistrate for fresh disposal according to law after giving opportunities to both sides to adduce further evidence, if necessary. This case should be decided by the learned Magistrate as expeditiously as possible. The L. C. R. be sent back immediately.