- (1.) N. B. Asthana, J. This writ petition has been filed for quashing the order dated 9-9-1992 passed under Section 145 Cr. P. C. by S. D. M. Handia, Allahabad and also the order dated 9-9-1992 passed by him under Section 146 (1) of the Cr. P. C.
(2.) FROM the record it appears that in Criminal Case No. 77 of 92 Rom Lolarakh v. Sagan and others, a preliminary order under Section 145 (1), Cr. P. C. was passed by S. D. M. Handia on 9-9-1992 directing the parties to appear before him on 23-9-1992 and their written statements with respect to their respective claims regarding actual possession of the subject matter of dispute which was plot No. 171/0. 219 hectare in village Bhelai, Pargana Bhadohi, Tehsil Handia, Allahabad. On the same day he passed an order under Sec tion 146 (1) Cr. P. C. attaching the subject-matter of dispute as an emergency measure. On the same day he passed another order directing the Station Officer, P. S. Kotwali, Handia, Allahabad to keep the property in dispute under attachment until a competent court had determined the rights of the parties thereto with regard to the person entitled to the possession thereof stating that he was unable to come to the conclusion as to which of the parties was in possession on the relevant date of the subject-matter in dispute. From a perusal of Section 145 and 146 Cr. P. C. it would be clear that after the parties have put in their written statement and have adduced evidence in support of their respective claims the S. D. M. is required to come to the conclusion as to who was in possession on the relevant date and within two months next before it. In case he is unable to come to any conclusion only then he could order that the disputed property shall remain under attach ment until the matter has been determined by a competent court. In the instant case the Magistrate without recording the evidence of the parties and on the day order under Section 145 (1) Cr. P. C. was passed came to the con clusion that he was unable to determine as to which of the parties were in possession on the relevant date. All this would indicate the utter ignorance of the S. D. M. with respect to the provisions of Sections 145 and 146 Cr. P. C. He could have passed final order, only if after consideration of the material placed on record he was unable to form any opinion as to which of the parties was in possession on the relevant date. This opinion has to be based on the evidence adduced in the case and not in the vacuum. The order of the S. D. M. directing the Station Officer to keep the property under attachment till the matter was decided by a competent court is palpably wrong and cannot be sustained. It was further contended that the order passed by the Magistrate under Section 145 (1) Cr. P. C. cannot also be sustained. In this connection reliance has been placed upon Nepal Singh v. Ram Chandra, 1984 (21) ACC 396 in which it was held that satisfaction of the Magistrate regarding appre hension of breach of peace must be based upon some information received including a police report. The order should be based upon materials. Of course, as it is a question of subjective satisfaction the Court will not look into the adequacy of such raptorial but material showing apprehension of breach of peace must be there because that is the vital source for deriving jurisdiction and if it is not there the preliminary order is without jurisdiction and conse quently a millity. The order passed under Section 145 (1) Cr. P. C. would indicate that the Magistrate was satisfied from the documents produced before him and upon the police report submitted on the application of the first patty that there was apprehension of breach of peace and, thereof he passed order under Section 145 (1) Cr. P. C. It cannot, therefore, be said that there was no material before the S. D. M. for satisfying himself that apprehension of peace breach of existed. Whether this evidence was sufficient or not has not to be looked because it is a matter of subjective satisfaction of the S. D. M. Whether this material was adequate or not is matter of sole discretion with the Magistrate.
(3.) IT was also contended that the proceedings initiated by respondent No. 3, namely, Ram Lolarakh under Section 145 Cr. P. C. were dismissed on 31-12-1982 and then again such proceedings were rejected on 28-7-1992 and, therefore, the Magistrate had no jurisdiction to initiate fresh proceedings with respect to the same subject-matter of dispute on 9-9-1992. Annexure-8 to the writ petition would indicate that the Station Officer of P. S. Handia submitted a report to the S. D. M. Handia stating about the different orders passed by different courts regarding possession of the parties and requesting him to clarify as to which party should be delivered possession of the plot in question. The S. D, M. passed an order on 26-7-1992 upon this report seating that proceedings under Section 145 Cr. P. C. are said to have been decided between the parties probably this refers to the proceedings taken in the year 1982. The matter of ownership is under consideration in a competent court. The Station Officer has stated about the apprehension of breach of peace, He should, therefore, keep a strict watch so that there may not be any breach of peace, and may take preventive action. This over would not moan that proceedings under Section 145 Cr. P. C. ware dropped. No proceedings were initiated at that time under Section 145 Cr. P. C. nor any question of dropping them would arise. Amtexure-7 is the order dated 31-12-1982 passed by the then S. D. M, Handia, Allahabad. The order shows that the S, D. was of the opinion that the matter relates to the dispute bother the parties relat ing to the ownership of the laud and as such he is of the opinion that there is no immediate apprehension of breach of peace. He, therefore, filed the application moved under Section 145 Cr, P. C. This order would also not indicate that any proceedings were initiated or decided under Section. 145 Cr. P. C. The Magistrate did not rind arty apprehension of breach of peace at that time and, therefore, did not initiate such proceedings. This would not prevent the Magistrate from initialing proceedings under Section 145 Cr. P. C. after the lapse of 10 years on the ground that the apprehension of breach of peace existed. IT cannot, therefore, be said that the Magistrate was not justified in initiating proceedings under Section 145 Cr. P. C. It has also been argued that the civil litigation is pending between the parties wherein the question of possession is also involved and that the criminal courts cannot be allowed to invoke its jurisdiction particularly when possession is being examined by the consolidation authorities. The Magistrate in proceedings under Section 145 Cr. P. C. is primarily concerned with the Saw and order. Even if the question of possession is being examined by competent court it would not prevent the S. D. M. from taking recourse to the proceedings under Section 145 Cr. P. C. if he comes to the conclusion that apprehension of breach of peace existed. The order passed by him in such proceedings would however be subject to the decision of the competent court but it cannot. be argued that since the question of possession is being examined by the competent court the Magistrate has no jurisdiction to initiate proceedings under Section 145, Cr. P. C.;