Mahesh Chandra, J. - (1.)This a reference by the District Magistrate, Almora recommending that the order of S.D.M. Baramandal, Almora dated 20-11-1964 cancelling the notice issued by him Under Sec. 145, Code of Criminal Procedure be set aside and the case remanded to the S.D.M. for further proceedings according to law.
(2.)Clearly, the District Magistrate, Almora is in error when he says that after passing a preliminary order Under Sec. 145, Code of Criminal Procedure it is not open to the Magistrate to go back on that order and say that on the date of the preliminary order also no apprehension of the breach of peace actually existed. This view of the District Magistrate is against the provisions of Sub-section (5) of Sec. 145 Code of Criminal Procedure. Sub-section (5) runs as follows:-
"Nothing in this Sec. shall preclude any party so required to attend, or any person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final."
It is evident that when a party required to attend shows to the satisfaction of the Magistrate that no dispute raising an apprehension of breach of peace existed, the Magistrate was under this sub-section bound to cancel his order and stay all proceedings thereon. This is precisely what the Magistrate did after the opposite parties had appeared and shown to his satisfaction that no such dispute existed. Before making a reference the District Magistrate would do well to read the provision of law itself and not rely on any preconceived notions.
(3.)The District Magistrate went on to say that, in any case, the learned Magistrate could have come to that conclusion only if some evidence to that effect had been received by him after the date of the preliminary order and if he had considered that evidence. We find that evidence was received by the Magistrate in the form of affidavits filed by both the parties and in the form of some documentary evidence also. The learned Magistrate has specifically mentioned in his order that he had gone through the affidavits filed by the Applicant and his witnesses. Later on, he also mentioned the affidavits filed by the opposite parties and their witnesses and he has also given reason why he had come to the conclusion that no apprehension of breach of peace existed. The order of the District Magistrate that there was no evidence before the Magistrate or that the Magistrate did not consider the evidence filed before him after the date of the preliminary order is incorrect.