- (1.) C. A. Rahim, J. This revision has been preferred against the order dated 8-8-1990 passed by the learned Sessions Judge, Allahabad in Criminal Revision No. 109 of 1990, setting aside the order dated 25-1-1990 passed by the learned Additional Sub-Divisional Officer Chail, Allahabad in Criminal Case No. 316/10 of 1989. By that order the learned Magistrate dropped the proceeding under Section 145, Cr. P. C. on the ground that there was no apprehension of breach of peace.
(2.) A proceeding was started against the revisionist at the instance of respondents and the learned S. D. M. on a police report submitted on 4-1-1987 drew up the proceed ings under Section 145, Cr. P. C. against the respondents. On 25-1-1990 the first party remained absent and the learned Magistrate passed the following orders: diwitiya paksha ka kathan hai ki dhara 145, cr. p. c. ke adhin kin karyawahi ki avashyakta nahi hai iski bayan tahriri dinank 2-5-87 ke para 14 men is kathan ka ullekh bhi kiya gaya hal dwitiya paksha ke kathan avam pratham pakshake anupathith money ke karan paya jata hai ki pratham paksha ka prashnagat samparti ke sambandh nahi hai avam kisi prakar ki shanti bhang hone ki ashanka bhi nahi hai. karyawahi antargat dhara 145, cr. p. c. sampat Id jati hai. dhara 146, cr. p. c. ke adhin kurkshuda sampatti dwitiya paksha ke haq men baguzashta kar dijaye. Against that order a revision was filed by the respondents. The learned Sessions Judge held that the learned Magistrate did not follow proper procedure. He was to record the evidence which Dilip Kumar Dutta (respondent before him) might have adduced and then to arrive a finding in the case. The learned Judge has also held that the learned S. D. M. without recording any evidence and without calling for any report from the police was not justified in coming to the conclusion that no apprehension of breach of peace existed. He also did not decide the subject-matter of dispute and give any finding that who was in possession on the date of filing of the application or two months prior to that date. The learned Judge accordingly allowed the revision, set aside the order dated 25-1-1990 and remanded back with the direction that the learned Magistrate shall fix a date for evidence of the parties without granting any adjourn ment except on compelling circumstances. Being aggrieved by the said judgment and order the respondents in the trial court has preferred this revision. It has been submitted that the revisionist was in possession of the property in dispute which he had received as first cousin of one Hemant Kumar, who died childless and the respondents claim cannot be sustained as they entered forcibly into the disputed property after breaking the lock. According to the learned Counsel the learned Magistrate is entitled to dispose of the application under Section 145 (5), Cr. PC. when no apprehension of breach of peace existed[ He has also submitted that for the last three years since the filing of the application no untowards incident happened calling for such an apprehension. The learned Counsel for the respondents has sub mitted that the learned Magistrate is not justified since his decision is based on circumstances only on the absence of the respondents (Petitioner before him ). He has also submitted that he has not decided the dispute in question. He has referred a decision reported in AI. R. 1982 S. C. 1226 wherein it has been held that proceeding of like nature should not be dismissed on technical ground. Thereafter dated 25-1-1990 quoted above speaks only of the absence of the first party for which proceeding was terminated. It is true that the learned Magistrate is empowered to dispose of the proceeding under Section 145 (5), Cr. PC. but the order must be reasoned order passed on materials present before him and not in an arbitrary manner. Under Section 145 (4), Cr. PC. it should have taken the evidence of the portion who were present before him on the date so fixed for that purpose and decide the matter accordingly. Any proceeding under Section 145, Cr. PC. presence or absence of a particular party is immaterial. It might be that it was initiated on a private complaint but when on the basis of certain materials t was considered necessary by the learned Magistrate to drop proceeding under Section 145, Cr. PC. it was the duty of the learned Magistrate to see independently whether such exigency was existing at the time of passing of the order. Proceeding under Section 145, Cr. PC. is not in the nature of a case instituted on a private complaint alleging some offence and the court of competent jurisdiction makes cognizance of it. In those cases presence or absence of a private complainant can shape up a particular order. But that proposition cannot be drawn in a proceeding where question of law and order is involved. I do not find that in the instant case learned Magistrate has justified his action by considering all materials before him as required. So I am constrained to hold that the order passed by the learned Magistrate is not proper and calls for action and by allowing the revision learned Judge has done rightly which cannot be interfered with by this Court.
(3.) THE revision is, therefore, dismissed. All interim orders are hereby vacated. Revision dismissed. .;