RANDHIR SINGH, J. - (1.) THIS is a reference by the Sessions Judge of Gonda recommending that an order passed under Section 145, Criminal Procedure Code, by a Magistrate, first class, Gonda, ordering delivery of possession to Debi Prasad and Mata Prasad who were applicants in a case under Section 145, Criminal Procedure Code be set aside.
(2.) IT appears that an application under Section 145 Criminal Procedure Code, was made by Debi Prasad and Mata Prasad on 24.9.1952, on the allegations that the jondhri crop in three acres of plot No. 1238/5 had been raised by them and that the opposite party were threatening to dispossess them and also that there was a likelihood of a breach of the peace. On receipt of this application the Sub -Divisional Magistrate, Tarabganj, made an order asking the station officer to make a report. 6.10.1952 was fixed for the receipt of this report of the station officer. Meanwhile on 29.9.1950, the Sub -Divisional Officer, Tarabganj, happened to go to Colonelganj police station and there seems to have been apprised of the facts of the case. He asked the station Officer to make a report and the report was made by the station officer on that date. He then passed an order as follows : "Attach the crop in dispute and call both parties to produce their evidence before me tomorrow at 3 p.m. and call the patwari." The order was served on the complainant as also on Jwala Prasad of the second party. Jwala Prasad and Parmatmadin, opposite parties Nos. 1 and 2, turned up before the Sub -Divisional Magistrate. They did not file any written statement. The Magistrate recorded the evidence produced by the complainants. No evidence was produced by the opposite party and final order was passed by the Magistrate ordering delivery of possession of the crop to the complainants. The opposite party being dissatisfied with the order passed by the Magistrate went up in revision to the Sessions Judge who has made the recommendation which is before me.
(3.) THE learned Sessions Judge has in his order of reference mentioned that the learned Magistrate had no jurisdiction to proceed with the case inasmuch as he failed to make an order in accordance with the provisions of Section 145, Criminal Procedure Code The provisions relating to a preliminary order made under Section 145 (1), Criminal Procedure Code are as follows : "Whenever a District Magistrate, Sub -Divisional Magistrate or Magistrate of the first class is satisfied from a police -report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute." It is evident that a Magistrate should, if he is satisfied that there is an apprehension of a breacn of the peace, express has satisfaction on tins point in writing and he should also make an order asking the opposite party to file a written statement and produce evidence. In the present case the Magistrate on receipt of the report of the station officer did not make any order expressing that he was satisfied that there was an apprehension of a breach of the peace but simply passed an order for attachment of the property. It is now contended that this procedure adopted by the learned Magistrate was not in accordance with law and the omission to observe the provisions of Section 145(1), Criminal Procedure Code, vitiated the subsequent proceedings in the Court of the Magistrate inasmuch as he had no jurisdiction to proceed with the case in the absence of an order in terms enjoined by Section 145 (1). In support of this contention, two rulings have been cited on behalf of the applicants who went in revision before the Sessions Judge - 'Lakhpat v. Mt. Mahrana', AIR 1947 Oudh 159 and - 'Abdul Aziz Khan v. Badri', AIR 1948 Oudh 184 . In these two cases, it was held that it was obligatory on the Magistrate to pass a preliminary order under Section 145(1) expressing his satisfaction that there was an apprehension of a breach of the peace before he could acquire jurisdiction to proceed with the case. In both these cases, however, it was mentioned that there was no material also before the Magistrate from which it could be inferred that the Magistrate was satisfied that there was an apprehension of a breach of the peace. In the earlier case, - 'Lakhpat v. Mt. Maharana', (A), a report had been called for from the Sadar Qanungo and his report showed that there was no apprehension of a breach of the peace and still the Magistrate ordered attachment to issue. Under these circumstances evidently there was no material before the Magistrate from which it could be inferred that he was satisfied that there was a likelihood of a breach of the peace. In the other case - 'Abdul Aziz Khan v. Badri' (B), also there was no material on the record to show that the Magistrate was satisfied of an apprehension of a breach of the peace, and it was observed by Kidwai, J. : "When the Court fails to pass such an order at any stage of the proceedings and there is not sufficient material on the record on the basis of which such an order could be passed, it cannot be held that the criminal Court had jurisdiction to take proceedings under section 145, Criminal Procedure Code.";