M.C.Desai, J. - (1.) This is a reference made by the Sessions Judge of Rae-Bareli against an order of the Sub-Divisional Magistrate, Mandal, terminating proceedings under Section 145 o the Code of Criminal Procedure on the ground that there was no longer any apprehension of a breach of the peace. The applicant before us made a complaint to the learned Sub-Divisional Magistrate to the effect that there existed a dispute relating to certain plots of land, which was likely to cause a breach of the peace. The learned Magistrate being satisfied that such a dispute existed issued a preliminary order under Sub-section (1), in response to which he appeared before him and led evidence. He then dropped the proceedings by the order sought to be revised. He said in his order that the question before him was whether there was any apprehension of a breach of the peace or not, referred to the statement of the applicant himself to the effect that no quarrel had taken place regarding possession, and held that this statement proved that there was no apprehensioa of a breach of the peace and that there was no necessity of deciding which party was in possession. The order of the learned Magistrate was quite illegal and I cannot help feeling that he adopted the short cut in order to prevent further delay in the case that had already been pending for more than a year. This is not the way to do justice. The applicant being aggrieved by the order brought the matter to the notice of the Sessions Judge, who referred the case to this Court for quashing the order. The reference came before one of us who, on account of a conflict among authorities, referred it to a Bench.
(2.) It is provided under Sub-section (1) that when a Sub-Divisional Magistrate is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he must make an order in writing, stating the grounds of his being satisfied, and requiring the parties concerned in the dispute to attend his court and to put in written statement of their respective claims as respects the fact of actual possession. Sub-Section (4) is as follows :-- "The Magistrate shall, then without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute, ..... decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject." Under the proviso to the sub-section he is empowered to attach the subject of dispute in case of emergency. This sub-section means that after the parties have appeared before the Magistrate all that he has to do is to decide which of them, if any, was in possession of the subject of the dispute on the date of the order made under Sub-section (1); he has no other jurisdiction, not expressly conferred by subsequent clauses, and cannot go into the question whether the order passed by him under Sub-section (1) was justified or not. Then comes Sub-section (5) which is as follows :-- "Nothing in this section shall preclude any party so required to attend, or any other 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." This sub-section confers jurisdiction upon the Magistrate to cancel the preliminary order (e.g. the order made under Sub-section (1)), but only on the ground that the dispute involving a breach of the peace has ceased to exist or did not exist at all. If there existed a dispute at the time of the order but it did not involve a breach of the peace or if no dispute existed at all then, it means that a dispute involving a breach of the peace did not exist. If such a dispute existed then but subsequently it has ceased to involve a breach of the peace, or if it has ceased to exist at all, it is a case of such a dispute ceasing to exist. In either circumstance the Magistrate has the power, coupled with duty, to cancel the preliminary order. In other words when it is proved to the satisfaction of the Magistrate that the dispute has ceased to be likely to cause a breach of the peace, he is obliged to drop the proceedings. But the essential question that arises, and that is frequently overlooked or erroneously answered, is of onus probandi. The onus of satisfying the Magistrate that the dispute has ceased to exist or to be likely to cause an apprehension of a breach of the peace has been laid in clear words upon the opposite-party, i.e. the party other than the applicant (the party at whose instance the preliminary order was passed). The onus of satisfying the Magistrate that there existed such a dispute lay upon him and when he discharged the onus and the Magistrate issued the preliminary order, he is no longer required to prove subsequently that such a dispute existed or continues to exist. He is not at all required to lead any evidence to prove that such a dispute existed or continues. If it did not exist or has ceased to exist, the onus is upon the opposite-party to lead evidence about it and it is only when he satisfies the Magistrate about it that the latter would be bound to drop the proceedings. A Magistrate, therefore, acts illegally if he drops the proceedings on the ground that the applicant has not led evidence to nrove that a dispute involving an apprehension of the breach of the peace existed and still continues. The applicant had the onus of satisfying the Magistrate about the existence of such a dispute in order to confer jurisdiction upon him over the dispute; once the Magistrate assumed jurisdiction, he has only to inquire into the question of possession, but the law confers the right upon the other party to satisfy him that no dispute existed or exists at all or that it did not, or has ceased to, involve an apprehension of a breach of the peace. The learned Magistrate was, therefore, wrong in saying that the question before him was whether there was any apprehension of a breach of the peace or not; the real question was whether the opposite party satisfied him that the dispute did not, or had ceased to, involve an apprehension of a breach of the peace.
(3.) In re Sambasiva Rao, AIR 1954 Mad 1017 (A), Balakrishna Iyyar J. upheld an order of a Magistrate dropping proceedings on the ground that no breach of the peace could be apprehended in the near future. According to his view proceedings can be dropped on the Magistrate's being satisfied that no breach of the peace is apprehended. The same view was taken by Ramaswami J. in Velur Devas-thanam v. Sambandamurthi Nainer, 1952 Cri LJ 1145 : (AIR 1952 Mad 531) (B), when he upheld a Magistrate's order cancelling the preliminary order on the ground that the dispute was not likely to cause a breach of the peace. In State v. Shiva Ratan Singh, 52 Cri LJ 1 : (AIR 1951 Nag 201) (C), Karunamoy v. Kalka Prosad, 51 Cri LJ 1340 : (AIR 1950 Cal 369) (D), and Babu v. Shyam Singh, ILR 1950 All 543 (E), it was held that the Magistrate's jurisdiction is gone on his finding that there is no apprehension of the breach of the peace. In Abdul Rauf v. Mohd. Shafi, 1956 Cri LT 663 : (AIR 1956 All 337 (2)) (F), Vishnu Datta Bhargava J. observed that a Magistrate has no jurisdiction to go into the question whether the dispute involved or still involves an apprehension of a breach of the peace and that his duty is simply to decide which of the parties was in possession on the date of the preliminary order. With great respect I disagree. The learned Judge has not considered the provisions of Sub-section (5) at all and has not referred to any authority and the view taken by him is erroneous. In Mahadeo Singh v. Sukhdeo, 1956 All LJ 699 (G). Asthana J. held that when the opposite-party denies the existence of a dispute likely to cause a breach of the peace, the Magistrate's duty is to call upon "the parties" to produce their evidence in support of their allegations regarding the likelihoodness. This statement of law also is not borne out by the language of Sub-section (5), neither party is to be called upon to produce evidence, certainly not the applicant. The onus lies upon the opposite-party to satisfy the Magistrate about the non-existence of the likelihood and he has to discharge it without being called upon by the Magistrate to produce evidence. In Amritlal v. Nageswara Rao, AIR 1947. Mad 133 (H), referred to by Balakrishna Ayyar J. in the case of Sambasiva Rao (A) (Supra), it was said that continuance of a breach of the peace is not essential to confer power upon the Magistrate to pass a final order. A dispute may not be said to be not likely to cause a breach of the peace simply because there has been no breach of the peace, but if it is no longer likely to cause a breach of the peace, the Magistrate is divested of jurisdiction to proceed further in the case and must drop the proceedings.;