Leila Seth, J.
(1) This is petition under section 482 of the Code of Criminal Procedure praying that the proceedings under section 145, Criminal Procedure Code, pending in the Court of Kumari L. Khiangte, Sub- Divisional Magistrate, Patel Nagar, be quashed.
(2) Petitioner No. I Maya Devi, is the owner of a house No. E-39, Kii Nagar, New Delhi. Petitioner No. 2 and petitioner No. 4, 0m Parkash Sikka and his wife respectively are the son and daughter-in-law of Maya Devi. Ramji Dass Kapur, Petitioner No. 3 is the attorney of Maya Devi. The respondent Bhagat Singh Bedi, is a tenant in a part of the abovementioned premises.
(3) It is perhaps pertinent to place the background of this case, which is chequered. Maya Devi went abroad to live with her son, who was posted outside India. Some time in October, 1979 Maya Devi, through her attorney, Ramji Dass Kapur, let out a part of the said first floor premises to Mr P P. Talwar. The portion let out on the first floor consisted of three rooms) one kitchen, bath room and two toilets. From the application under section 21 of the Delhi Rent Control Act, 1958 and the map annexed thereto, it was apparent that one bed room on the first floor measuring 13' x 13.6' with a store annexed measuring 3.6' x 9'.4'' 'was retained by the landlady. Subsequently, as the premises were no longer required by Mr. Talwar, the premises were let out to Mr. Inderpal Singh Bedi (since deceased)/Bhagat Singh Bedi on 8th December, 1979. The abovementioned room with attached store continued to remain locked and in the possession of the landlady.
(4) Sometime in the middle of May, 1981 Maya Devi returned to India with her son and daughter-in-law. It is asserted by her that she utilized the room and attached store. However) on 3rd August, 1981 it appears that when Mr. 0m Parkash Sikka went to the first floor to go to the said room where their goods were kept he was prevented from entering and threatened.
(5) As a result, Maya Devi lodged a report with the police station, Moti Nagar on 4th August, 1981. According to the report, Maya Devi had Stored some other goods in the said room and locked it in June, 1977 when she had gone to Kuwait. Thereafter when they returned to India on 15th May, 1981, they had found their luggage intact and had been using this room. It was only on 3rd August, 1981 at about 8 a.m. that her son was prevented from entering.
(6) It appears that thereafter the tenant put his own lock over the lock of the landlady on the door of the said room.
(7) On 12th August, 1981, Bhagat Singh Bedi filed a suit against Maya Devi, being suit No. 351 of 1981 for a permanent injunction restraining her and her family members and others from dispossessing him from the tenancy premises. In the said suit Bhagat Singh Bedi alleged that he was a tenant of the entire first floor premises, which comprised of four rooms (not three) apart from the kitchen, toilets etc. In the said suit a local commissioner was appointed to visit the said first floor premises and to report with regard to the possession of the premises and to make a rough site plan.
(8) On 13th August, 1981 Mr. Kailash Gambhir, the local commissioner went to the premises at about 5.15 p.m. Maya Devi informed him that one bed room, shown in red colour in the rough site plan, was in her exclusive possession and was never given to the tenant. According to her a passage leading to the room and the rear court-yard were common and could be used by both the parties. Bhagat Singh Bedi, however, claimed that the entire first floor including that bed room, passage and rear courtyard were in his tenancy.
(9) The local commissioner found as a fact two locks on the door of the disputed room: one belonging to the landlady and the other belong to the tenant. On the respective locks being opened, the local commissioner noted the items lying in this room. They consisted of a dewan, a double bed with bed sheets stretched on it, a steel almirah, a dressing table without glass, two aluminium easy chairs, one wooden sofa and one wooden stair case. In the store annexed, two iron trunks and other household items were lying. It was admitted by Bhagat Singh Bedi that every single item in the bed room belonged to the land lady.
(10) On 30th September, 1981 an order was passed by Mr. S.S. Handa, Sub-Judge I Class, Delhi after hearing counsel for the parties. The court observed that 'the bone of contention between the parties is the same portion upon which the defendant and the plaintiff have put their locks'. It opined that in view of the fact that the entire set of household articles lying in the disputed room belonged to the defendant landlady, the landlady was in possession and that the plaintiff-tenant could not show his possession by merely putting a lock on the door. The Court, thereforee, ordered the plaintiff tenant to remove the lock from the disputed room in the possession of the defendant landlady and to allow her 'to use the room through the passage leading to the room'. He restrained the defendant landlady from dispossessing the plaintiff-tenant from the portion in his possession.
(11) Bhagat Singh Bedi, the tenant filed an appeal against the order. This was numbered as M.G.A. No. 363 of 1981. On 22nd December, 1981, Mr. Subhash Wason, Additional Senior Sub-Judge (with enhanced appellate powers) dismissed the appeal. He granted Bhagat Singh Bedi one week's time to comply with the directions of the trial court failing which Maya Devi would be at liberty to move the court for obtaining necessary orders regarding breaking open the lock.
(12) On 23rd December, 1981 Bhagat Singh Bedi filed an application under Order Xxiii rule 1, Code of Civil Procedure for withdrawal of the 405 suit in the court of Mr. S.S. Handa, Sub-Judge 1st Class, Delhi. Notice of this application was received by the landlady on 4th January, 1982. On 6th January, 1982 the suit No. 351 of 1981 was dismissed as withdrawn.
(13) However, on 4th January, 1982 Bhagat Singh Bedi had filed a revision being CR. 3 of 1982 in this Court. Notice to show-cause why the revision be not admitted was issued on 5th January, 1982 for 11th January, 1982. A caveat which had been filed was directed also to be listed on I 1th January, 1982. It appears that the Senior Sub-Judge had extended the time for removing the lock till 6th January, 1982. This court further extended the time till 11th January, 1982, as the notice was made returnable for that date. On 11th January, 1982, Civil Revision 3ofl982andC.M. (Caveat) 9 of 1982 were dismissed as withdrawn as they had become infructuous in view of the fact that the suit out of which the proceedings arose had been withdrawn.
(14) The net result of this was that the interim order dated 30th September, 1981 endorsed by the dismissal of the appeal on 22nd December, 1981 directing Bhagat Singh Bedi to remove the lock from disputed room in possession of Maya Devi and allow her to use the room was no longer operative. As such both the locks remained on the door of the disputed room.
(15) However, prior to the dismissal of the appeal, Bhagat. Singh Bedi filed a suit on 23rd November, 1981 in the Court of Mr. S K. Tandon, Sub-Judge 1st Class, Delhi for possession ; he also moved an application under Order 39 rules I and 2 and section 151, Civil Procedure Code. In the said suit the plaintiff prayed for a decree for possession of the disputed room and asked for a direction that the defendant-Maya Devi remove her lock from the door of the disputed room. A temporary injunction restraining Maya Devi from breaking open the lock placed by the plaintiff on the said door and from entering or occupying the disputed room was also prayed for.
(16) On 22nd January, 1982 the landlady, Maya Devi made an application requesting that the tenant be restrained from obstructing her passage to the disputed room and directing him to open his lock. This application was made in the suit for possession filed by the tenant in the Court of Mr. S.K. Tandon.
(17) On 15th March, 1982 Maya Devi sent a legal notice to Bhagat Singh Bedi claiming damages for deprivation of the user of the said disputed room and store which were in her occupation. The damages claimed were to the tune of Rs. 3333.33, at the rate of Rs. 400.00 per month, with effect from 4th August, 1981 till 15th March, 1982 as also further damages.
(18) On 18th March, 1982 both the application filed by Bhagat Singh Bedi and the one filed by Maya Devi were adjourned, by Mr. S.K. Tandon, for arguments to 17th May, 1982.
(19) Thereafter on 15th April, 1982 Bhagat Singh Bedi lodged a report at Police Station Moti Nagar with regard to an incident of breaking open of lock and entry into the disputed room and also removal of door.
(20) Subsequently, on 22nd April, 1982 a complaint was made to the Sub-Divisional Magistrate by Bhagat Singh Bedi under section 145, Criminal Procedure Code. The Sub-Divisional Magistrate directed the S.H.O., Moti Nagar to enquire into the matter and report positively by 26th April, 1982 through the Assistant Commissioner of Police. Both parties were also summoned for the said date.
(21) The police went to the spot and recorded the statements. In the report of Rameshwar Dutt, Sub-Inspector dated 25th April, 1982 it is observed as follows: 'From the statements it becomes clear that there are four rooms on the first floor of the house out of which three rooms had been taken on rent by Shri Bhagat Singh Bedi s/c. S. Labh Singh Bedi and one room is under the possession of Smt. Maya Devi, the landlady, in which she has kept her house-hold articles. Smt. Maya Devi and the tenant Shri Bhagat Singh Bedi have a common gallery on which the tenant Shri Bhagat Singh Bedi is unhappy. The Sho and Agp also visited the site and after making enquiries were satisfied. It is understood that some court cases are pending between the landlady, Smt. Maya Devi and the tenant Bhagat Singh Bedi. Shri Bhagat Singh Bedi, in the presence of his brother, Shri Gurdiyal Singh Bedi, has given in writing that he will not make any quarrels on property matters with the landlady and whatever the courts will decide, he will abide by those decisions. In view of this, afterinstructing both the parties, I asked him to go. The dispute is that of a tenant and landlord and no intervention is required by the Police. There is no apprehension of breach of peace. There appears to be no dispute resulting in apprehension of breach of peace.'
(22) On various dates thereafter the matter was listed before the Sub Divisional Magistrate and adjourned for one reason or the other. However, on 21st May, 1982 both parties were present with counsel and arguments were heard at length. It was directed to come up on 31st May, 1982. On 31st May, 1982 a preliminary order under section 145, Criminal Procedure Code, was passed. The order was in the following terms : 'Preliminary orders u/s. 145 Cr. P.C. Whereas a complaint u/s. 145 Cr P.C. was filed by the 1st party in this court on 22-4-82 wherein it was complained that the 1st party has been dispossessed from one room on the first floor of E-39, Kirti Nagar, New Delhi (marked X in the plan) by the second party who is also residing in E-39, Kirti Nagar, New Delhi. A Police Report was called for which was received on 26-4-82. It appears from the Police Report and from the preliminary enquiry conducted by me so far that a dispute likely to cause a breach of peace exists between the above said parties concerning one room on the first floor of H. No. E-39, Kirti Nagar, New Delhi situated within my local jurisdiction. And whereas I am further satisfied that there is a likelihood of breach of peace and thereforee, I hereby order the said parties to appear 407 before me on 5-7-82 at 10 A.M. and put in their written statement and documents relied on in respect of the fact of actual possession of the subject matter of dispute. A copy of this order served upon the parties and one copy be affixed to the door of the subject matter of dispute.'
(23) From the said order it is apparent that the Sub Divisional Magistrate had called for a police report on the complaint of the first party having been dispossessed from one room on the first floor of E-39, Kirti Nagar ; and that it was on the basis of the police report and the preliminary enquiry conducted by her that she was satisfied that a dispute likely to cause a breach of peace existed between the parties concerning one room. The basis of her satisfaction was the police report and the preliminary enquiry. However, the police report, the crux of which has been set out above, does not indicate any likelihood of a breach of peace existing. With regard to the preliminary enquiry there does not appear to be any, apart from asking for the police report.
(24) It is, thereforee, not clear as to how the Sub Divisional Magistrate could on the basis of the police report, which clearly states that there is no apprehension of a breach of peace, and the preliminary enquiry which is non-existent come to a conclusion that there was likelihood of a breach of peace.
(25) In R.H. Bhutani v. Miss Mani I. Desai and others, : 1969CriLJ13 , the Supreme Court has observed that the satisfaction under subsection (1) of section 145, Criminal Procedure Code, is that of the Magistrate. No hard and fast rule can be laid down as to the sufficiency of the material for his satisfaction. But the discretion of the Magistrate has to be exercised in accordance with well recognized rules of law. The satisfaction can be both from the police report or from other information. It is not necessary that before proceedings under section 145(1), Criminal Procedure Code, the Magistrate must call for a police report. The words 'other information' are wide enough to include an application by a private party and once a Magistrate has examined the appplicant on oath and is satisfied that his application discloses the existence of a dispute and the likelihood of a breach of peace there is no bar to his acting under section 145(1). The High Court should not go into the sufficiency of the material which has satisfied the Magistrate while exercising revisional jurisdiction.
(26) However, the Supreme Court observed that one of the reasons for the High Court setting aside the order of the Magistrate was that the Magistrate had acted only on the allegations in the application without making any further enquiry; but the Supreme Court specifically noticed before passing the order the Magistrate had examined the applicant on oath and it was only then that he had made the order regarding his satisfaction. Apart from this there was the fact that on subsequent dates the applicant had gone to the police station twice and requested the police to take action and had lodged two complaints. With all this material before the Magistrate, it was hardly fair to blame the Magistrate that he had passed his preliminary order lightly or without being satisfied as to the existence of a dispute and the likelihood of the breach of peace.
(27) The Supreme Court further observed that though the section requires the Magistrate to record the reasons for his satisfaction ; these would be apparent from the fact that the Magistrate had expressed his satisfaction facts set out in the application and after examining the on the basis of applicant on oath.
(28) The above decision of the Supreme Court makes it abundantly clear and there can be no doubt that the discretion or the satisfaction to be arrived at is that of the Magistrate while passing the preliminary order. But that discretion has to be exercised in accordance with well recognized rules of law, it cannot be based on material which is neither mentioned nor apparent from the order, especially when the specified reasons are at variance with the record.
(29) The grounds indicated by the Magistrate in her order for her satisfaction are the police report and the preliminary enquiry conducted. The police report, as above noticed, indicates a contrary view point and in fact suggests that there is no apprehension of a breach of peace. No other preliminary enquiry appears to have been conducted ; nor has the complainant or any other person or witness been examined on oath. This would indicate a lack of application of mind by the Magistrate in arriving at her satisfaction. In the circumstances it would appear to me that the satisfaction of the Magistrate is based on non-existent material ; it is neither supported by the police report as it purports to do ; nor by any other information, such as an affidavited complaint or testimony on oath or other enquiry. I accordingly hold that the order under section 145, Criminal Procedure Code, is without jurisdiction.
(30) There is also one other aspect of the matter, which is pertinent ; as the history, above narrated indicates the entire goods found by the local commissioner in the disputed room on 13th August, 1981 were that of Maya Devi. It was her lock that was found on the door as also the lock of Bhagat Singh Bedi. thereforee, the case of Bhagat Singh Bedi, as best, can be a case of joint possession, not exclusive possession. Where the parties are in joint possession of the property in dispute, the Magistrate has no jurisdiction to initiate proceedings under section 145(1). Criminal Procedure Code, (See : Bisram v. Kamla Prasad and others, A 1.R. 1945 0udh 62.
(31) In Nahar Singh v. The State, . a Division Bench of that Court has opined that 'the law is well settled that an order under section 145 can only be passed in favor of a party in exclusive possession of the property and no declaration of joint possession can be made under section 145 Cr P.C.'
(32) A similar view had been expressed in Gopi Nagh Singh v. Emperor through Surajpal Singh, A.I.R. 1948 Oud 130.
(33) For the reasons outlined above, it would appear to me that it is in the interest of justice that the proceedings and the order dated 31st May, 1982 be quashed. I order accordingly. The petition is allowed.