1. The facts from which this rule arises are briefly the following. One Babu Naresh Narayan Chowdhury of the first party lodged an information at a police station in the Pabna District on 15th October 1940, alleging likelihood of a breach of the peace by the second party on certain allegations. The second party made rival allegations on the same day and at the same time. The proceedings went on for something over two years from this date but not all the dates j are now material. On 11th November 1940, a notice was issued by the Magistrate on police report calling on both parties to appear with documents etc. On 11th February 1941 the previous order was cancelled and both parties were heard on 24th March 1941. On that date the learned Magistrate held that there was a bona fide claim to possession and ordered proceedings to be drawn up under Section 145, Criminal P.C., he attached the lands in dispute. A map of the lands was submitted on 2nd July 1941; objections were raised to the map, difficulty arose over service of notices; and notices were eventually completed by 15th October 1941. Thereafter, parties were added and parties died, the trying Magistrate was transferred, and the new Magistrate sought to begin the hearing on 5th January 1942. This Magistrate was transferred on 19th February 1942 and the examination of witnesses actually began on 4th March 1942. The case appears thereafter to have been heard from day to day, though there was some interruption at the stage of the arguments. Arguments appear to have been completed on 30th May 1942, at which stage local inspection was suggested. The learned Magistrate recorded that he would go through the papers and see whether it was justified. On 20th June 1942, the learned Magistrate recorded that the lands were likely to be under water and ordered the proceedings to be put up after the rainy season. On 26th October 1942, the learned Magistrate went through the papers and decided that no local inspection was necessary. It is not clear why the rainy season impeded this mental process, but this by the way. On 20th November 1942 the judgment was delivered.
2. The learned Sessions Judge discharged a rule against the order of the learned Magistrate and, in this Court a rule was issued on two grounds firstly that the proceedings started on 20th March 1941 or 12th August 1941 on the basis of a police report dated 1st November 1940 could not be sustained; and, that in view of the statements of the parties with regard to the likelihood of the breach of the peace the order complained of cannot be sustained. The latter ground is without substance. It appears from the papers that each party submitted that that party did not intend to break the peace. Nothing is said about the intentions of the other party, necessarily indeed. These two statements taken together therefore cannot be held to establish the facts required by Sub-section (5) of Section 145, Criminal P.C., namely that a party shows that 'no...dispute...exist or has existed.'
3. The other ground requires fuller consideration. The order sheet shows that the proceedings from the beginning to the end occupied something over two years. The learned advocate for the petitioners attacks the proceedings as legally bad, on the basis that assuming that the police report dated 1st November 1940 indicated the existence of the danger of the breach of the peace on that date, there was nothing to show that the danger continued to exist until 20th March 1941 (or 12th August 1941 should the latter be taken to be the material date). We must observe at the outset that the foundation of the proceedings under Section 145, Criminal P.C., is the existence of a danger to the public peace and the need of urgency in dealing with it by the Magistrate, as responsible for the preservation of the peace, preparatory to the disputes of the parties being taken before the civil Courts. We find it difficult in the extreme to reconcile the course of events in the present proceedings with this conception, in our opinion a fundamental conception. The learned advocate for the petitioners has drawn our attention to a decision of this Court in Anadi Lal v. Sukh Chandn : AIR1930Cal715 where a Division Bench held that it was necessary that the, Magistrate should be satisfied at the time of drawing up proceedings under Section 145, Criminal P.C., that there was then existing a likelihood of the breach of the peace arising from disputes between parties as to possession of the land in question. In that case the police report was over six months old. The learned advocate for the opposite parties submits that this decision is a decision on the facts of that case. No doubt it is, but nothing he has been able to place before us suggests that the principle laid down in that decision is inapplicable to the facts of the present case. Quite apart from the unconscionable time the later stages took we find nothing on the record to show that the likelihood of a breach of the peace said to exist on 1st November 1940 continued to exist on 20th March 1941. This is sufficient to dispose of the proceedings. We, therefore, set aside the final order in the proceeding under Section 145, Criminal P.C. The rule is made absolute in these terms.
4. I agree.