Amitabha Dutta, J.
1. This is an application for revision of an order dated 27-1-1981 passed by the learned Executive Magistrate at Barrackpore in a proceeding under Section 145, Cr. P.C. being case No. M182 of 1973 dropping the proceedings and vacating the attachment order. Abdul Sobhan, since deceased, brother of the petitioner filed an application under Section 144 of the Code before the Sub-Divisional Magistrate, Barrackpore on 21-3-1973 alleging that the second party men were threatening to possess forcibly portions of plots Nos. 3104 and 3115 of Mouza Sultanpur within South Dum Dum Municipality of which the petitioner's mother Khadi Bibi was a Mutwalli. It was alleged that the petitioner's mother had lodged information in the local police station and informed the higher authorities of such threats, as a result of which the S.D.O. Barrackpore and Officer in charge of Dum Dum P.S. visited the localty and asked the second party men not to raise structure on the disputed land But after some days they again threatened to take forcible possession of such land and to assault and murder the petitioner. So the petitioner had lodged information in the general diary entry of the local police station. The learned Magistrate referred the matter to the police for enquiry and report. The Police Officer submitted report on the 4th May, 1973 stating that the dispute was of a civil nature and that both parties claimed the disputed plots. He however suggested that proceeding under Section 145 of the Code might be drawn up against both the parties to maintain peace. Thereafter the learned Magistrate after considering the petitioner's application and the police report and recording his satisfaction that there was apprehension of serious breach of the peace on account of dispute between the parties concerning the aforesaid two plots of land, passed a preliminary order under Section 145(1) of the Code on 5-5-1973 drawing up proceeding under the said sub-section. By the said order he attached the disputed land to prevent breach of the peace and appointed the officer-in-charge of Dum Dum P.S. as receiver thereof.
2. Thereafter the parties filed written statements, documents and affidavits in support of their respective claims and the case was fixed on 10-12-1973 for hearing but on account of frequent adjournments on the prayers of the parties and transfers of Magistrates who were to deal with the case from time to time the enquiry as to possession as contemplated in Section 145(4) of the Code remained pending for over seven years. On 27-1-1981 the learned Executive Magistrate passed the impugned order vacating the order of attachment of the disputed plots and dropping the proceedings on three grounds. Firstly, according to him, as there was no mention about any breach of the peace in the police report the instant proceeding was bad in law. Secondly, neither party had made out that any apprehension of breach of peace ever existed at all concerning the subject of dispute and as the dispute was of a civil nature the court of Executive Magistrate was not the proper forum. Thirdly, apprehension of breach of the peace could not continue for over seven years and there was no evidence on record to show that any breach of peace actually took place during that period. On these three grounds, the learned Magistrate vacated the order of attachment and dropped the proceedings.
3. The impugned order of the learned Magistrate has been assailed on behalf of the petitioner on the grounds that it is illegal, incorrect and improper. On the other hand, it has been submitted on behalf of the opposite parties that the learned Magistrate is justified in dropping the proceeding as the petitioner did not claim actual possession of the disputed plots in his application under Section 144 of the Code and the opposite parties having shown that no dispute concerning the disputed plots exists or had existed between the parties the learned Magistrate was competent to drop the proceedings in view of the provisions of Sub-section (5) of Section 145 of the Code.
4. Upon hearing the learned Advocates of the parties and considering the materials on record I find that the impugned order of the learned Magistrate cannot be sustained. In the police report submitted on 4-5-1973 it was stated that both parties claimed the disputed plots and that the S.D.O. Barrackpore visited the spot and tried to bring about settlement between the parties. The reporting Police officer also suggested that proceeding under Section 145 should be drawn up to maintain peace and the suggestion shows, without such proceeding it was likely to be disturbed. Moreover, the learned Magistrate is competent to arrive at his satisfaction as to likelihood of breach of the peace arising from a dispute concerning immovable property, not only from the police report but also from other information which includes the application by the party who complained of threatened dispossession before initiating the proceeding under Section 145 of the Code. The provisions of Sub-section 145(1) of the Code are clear on this point. In the present case, the learned Magistrate who initiated the proceeding as it appears from the preliminary order passed by him on 3-5-1973 considered both the police report and the application of the petitioner before exercising his discretion and the successor Magistrate who passed the impugned order had no jurisdiction to go into the question of sufficiency of materials which satisfied that earlier Magistrate who initiated the proceeding. It has been held by the Supreme Court in the case of R. H. Bhutani v. Mani J. Desai : 1969CriLJ13 that even the High Court in revision cannot go into that question. The learned Magistrate is also palpably wrong in holding that neither party has made out any apprehension of breach of peace, that any apprehension of breach of peace ever existed concerning the subject of dispute. Apart from the allegations in the application under Section 144 of the Code made by the petitioner of threats of forcible dispossession and assault and murder of the petitioner by the opposite party men, the opposite parties and others in their written statement in response to the preliminary order under Section 145(1) of the Code filed on 14-11-1973, alleged that they did not claim the disputed plot 3104 but they claimed possession over the disputed plot 3115 and that the first patty's claim over plot No. 3115 was mala fide as he had stated before the competent authority on 4-2-1955 that he had been dispossessed from that plot and wanted compensation. It was also alleged that the first party was obstructed when he attempted to fence plot No. 3104. The opposite parties in the said written statement also admitted that the Sub-Divisional Officer Barrackpore came and advised the parties to come to a compromise. In another petition filed by the opposite parties on 6-4-1976 they specifically stated that there was apprehension of breach of the peace on account of rival claims of the parties. In view of such averments in the application of the petitioner and the subsequent petition filed by the opposite parties it is a palpable mistake to hold that neither party has made out that any apprehension of breach of the peace ever existed concerning the disputed plots. The learned Magistrate has further erred in holding without any materials before him, that there was no apprehension of breach of peace at the time when he passed the impugned order. The mere fact that the proceeding was pending over seven years is by itself not a sufficient reason for coming to such a conclusion. He has not taken into consideration the circumstances that peace existed because the disputed plots were under attachment or in custodia legis of the court and the officer in charge of Dum Dum Police Station was appointed care taker in respect of the disputed plots on and from 5-5-1973 when the preliminary order was passed. It has been held by the Supreme Court in : 1969CriLJ13 , already referred to above at page 1447, para 8, that it is not necessary that at the time of passing the final order the apprehension- of breach of peace should continue or exist. An 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. Under the second proviso a party who is found to have been forcibly and wrongfully dispossessed within two months next preceding the date of the preliminary order may for the purpose of the enquiry be deemed to have been in possession on the date of that order. The opposite parties may of course prove that dispossession had taken place more than two months next preceding the date of that order and in that case the Magistrate would have to cancel his preliminary order. The Supreme Court has also held at p. 1449 in para 14 of the said decision that even when a person has a right to possess but he takes the law into his own hands and makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession.
5. For the aforesaid reasons, I set aside the impugned order of the learned Magistrate. He is directed to make an enquiry under Section 145(4) of the Code of 1898 and either pass final order under Section 145(6) or forward the record of the proceeding under Section 146(1) of the Code to the Civil Court. The order of attachment of the disputed plots and appointment of officer in charge of Dum Dum Police Station as care taker thereof will continue till the disposal of the proceeding. The Rule is thus made absolute without any order as to costs.
6. Let the records be sent down to the court below as early as possible.