Ram Pal Singh vs Bhagelu and Others

H.N. Kapoor, J.—This reference has been made by the 1st Temporary Sessions Judge, Pratapgarh, by his order dated 21-5-1973, in Criminal Revision No. 43 of 1972, making a recommendation to this Court that the order of the Magistrate dated 15-7-1972, ordering the application for starting proceedings u/s 148 of the Code of Criminal Procedure and other relevant papers, the dispute was of a civil nature and it was not a fit case for taking proceeding u/s 145 of the Code of Criminal Procedure. The present revision is moved on an application for taking proceedings against the opposite parties u/s 145 of the Code of Criminal Procedure as there was dispute over certain land and there was apprehension of breach of the peace. The learned Magistrate had called for the report of the Tahsildar and the Naib Tahsildar had submitted a report and his report was that there was apprehension of breach of the peace. The learned Magistrate was obviously not satisfied by this report and had issued notice to the Other party without passing a preliminary order. After hearing both the parties the learned Magistrate arrived at the conclusion that the dispute was purely of a civil nature and no case was made out for taking proceedings u/s 145 pf the Code of Criminal Procedure.

The learned Sessions Judge has taken the view that the Magistrate was bound to decide whether there was apprehension of breach of the peace or not before passing the impugned order. The learned Magistrate has given an explanation and has stated that after making the enquiry he was satisfied that there was no apprehension of breach of the peace and the matter was purely of a civil nature.

u/s 145 of the Code of Criminal Procedure a Magistrate can pass preliminary order u/s 145(1) only when he is satisfied from the police report or other information that a dispute likely to cause breach of the peace exists concerning any land. There is no provision that while refusing to take proceedings u/s 145 of the Code of Criminal Procedure a Magistrate'' is bound to make a regular enquiry with regard to the apprehension of breach of the peace and after recording a clear finding that there was no apprehension of breach of the peace he could refuse to take proceedings. It is implied in the order of the Magistrate that he was satisfied that a case for taking proceedings u/s 145 of the Code of Criminal Procedure was not made out. He was, therefore, not bound to pass a preliminary order u/s 145(1) of the Code of Criminal Procedure and to start proceedings. It would certainly have been a different matter in case he had passed a preliminary order and at a later stage had dropped the proceedings without recording a finding that there was no longer existence of breach of the peace. Learned Counsel for the applicant has argued that the Magistrate was not justified in issuing notice to the other party before passing a preliminary order. At worst it was a mere irregularity. All that can be said is that the Magistrate wanted to be fully satisfied before passing the preliminary order.

In the result the reference is rejected. The order of the Sub-Divisional Magistrate dated 15-7-1972 is confirmed.