Jamna Prasad Kirodilal Sharma vs Grendra Kumar Gopichand Mittal and others.

T.K. chandrashekhara Das, J.—This matter arises out of a petition filed by the petitioner before the Executive Magistrate, Kalyan, alleging certain offences said to have been committed by the respondents in respect of the property known as Gokul Lunch Restaurant. The Magistrate, however going into the merits of the case dismissed the complaint. Against that order, the petitioner filed a revision petition before the District and Sessions Judge, Thane. The revisional Court also, on examining the merits of the case, dismissed the revision. Against these orders of dismissal of the courts below, the petitioner filed this petition purported to be under Article 227 of the Constitution of India.

I have gone through the complaint filed by the petitioner before the Magistrate narrating certain disputes regarding the possession and title of the building aforementioned and by threatened the dispossession thereof. However, there is no averment in the complaint that the same dispute will likely to create a breach of peace in the locality. In order to entertain a petition or a Magistrate to have jurisdiction u/s 145 Cr. P.C. only when there is an apprehension of danger to the peace. The opening sentence of section 145 Cr. P.C. will go to show that a threatening of breach of peace is an essential condition precedent to invoke the jurisdiction of a Magistrate u/s 145 Cr. P.C. After careful examination of the complaint, I could not see any such averment in the complaint. Therefore the complaint is liable to be dismissed on that ground alone. However, since the lower court has not entertained this complaint on merit, I do not propose to express any opinion on that count. I only observe that the Magistrate has taken up a futile exercise in the absence of averment of breach of peace in complaint. A Magistrate cannot invoke the power u/s 145 Cr. P.C. merely on an allegation of threatened dispossession of a land or building unless it is further shown that the threat employed is capable of causing a threats to the peace in the area.

In the result the writ petition fails and it is dismissed. No order as to costs.

Petition dismissed.