- (1.) This application in revision arises out of proceedings Under Section 145, Code of Criminal Procedure. A complaint was made by Mata Prasad in respect of plot No. 828 which is the plot in dispute and his allegation was that there was apprehension of breach of the peace over it. This complaint was referred to the police station concerned for enquiry and report. The Station Officer of the police station concerned reported that there was no such apprehension of breach of the peace as was alleged by the complainant. The complainant thereupon filed an affidavit on the basis of which the SDM was satisfied that there was such an apprehension. He issued notices against the opposite parties and ultimately the Applicants were found to be in possession of the relevant dates and the order was made in accordance with that finding.
(2.) The question whether there was an apprehension of breach of the peace is the main question which gives jurisdiction to the Magistrate to exercise his powers Under Section 145, Code of Criminal Procedure. If there is no such apprehension even though it is alleged by one of the parties, the SDM will have no jurisdiction to exercise his powers under this provision of the Code.
(3.) In the first paragraph of his judgment the SDM has certainly mentioned that he was satisfied on the affidavit filed that there was such an apprehension of breach of the peace, but this is only a preliminary opinion which was formed by the SDM exparte in the absence of the opposite parties. After the opposite parties are served they are entitled to urge before the SDM that there is no apprehension of breach of the peace; and if and when such an allegation is made, it is incumbent upon the SDM to make en enquiry in respect of that allegation. Provision for this enquiry is made Under Sub-section (5) of Section 145, Code of Criminal Procedure, which provides that nothing in this section shall preclude any party from showing that no such apprehension of breach of the peace exists or has existed. In such a case the SDM is required to cancel his earlier order and all the further proceedings are to be stayed.;