- (1.) THIS case comes on a reference by the Sessions Judge, Bundi, dated the 30th March 1950.
(2.) THE facts giving rise to this case are that on the 13th of September 1948 one Kamlabai lodged a complaint to the effect that the locks of her house and shop were broken open by the accused Narotam and Kesrilal and her movable property which was placed therein was removed by the accused, that this action on their part came within the purview of sec. 451 I. P. C. and sec. 145 Cr. P. C. and, therefore, the accused should be punished and the complainant's movable property be restored to her possession. THE City Magistrate, Bundi, thereupon did not make any enquiry into the offence under sec. 451 I. P. C. but proceeding under sec. 145 Cr. P. C. he passed an order on the 19th of December 1949 directing the accused to restore the possession of the house and the shop to the complainant and to refrain from making any breach of the peace. The learned Sessions Judge reports that the said Magistrate had failed to observe the mandatory provisions of sec. 145 (1) Cr. P. C. on account of his failure to state the grounds of his being satisfied about the likelihood of a breach of the peace that he had, therefore, no jurisdiction into the matter and all the subsequent proceedings taken by him are void for that reason. From the perusal of the trial court's record the Sessions Judge's report is found to be correct. From the complaint itself it appears that although the complainant had made a passing reference to sec. 145 Cr. P. C. what she really complained about was that the accused had broken the locks of her house and stolen away her property and, therefore she wanted to get them punished under sec. 451 I. P. C. and to recover her movable property. There was no allegation in the complaint that there was a likelihood of a breach of the peace concerning the house or the shop. After examining the complainant on oath, the Magistrate did not pass any order according to sub-section (1) of sec. 145 Cr. P. C. His only order was that the case be registered, the accused be summoned and the complainant should produce here evidence on the 19th of October, 1948. Sub-section (1) of section 145 of the Criminal Procedure Code reads as follows: - "whenever a District Magistrate, Sub-Divisional Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. " It is clear from the language of the above provisions that it is mandatory upon the Magistrate to make an order in writing stating the grounds of his being satisfied that there is a dispute likely to cause a breach of peace concerning the immovable property and requiring the parties concerned to put in written statements of their respective claims regarding the fact of actual possession of the dispute property within a time which may be fixed by him. It is also clear that if the Magistrate is not satisfied about the likelihood of a breach of the peace he has no jurisdiction in the matter and he should not appropriate the functions of a civil court to resolve the dispute between the parties. It further appears that although no order about notices was given by the Magistrate a notice was issued to the accused but it only asked them to show cause why the possession of the house and shop should not be restored to the complainant. It did not ask the accused to put in written statements of their respective claim regarding the fact of actual possession of the disputed property. Again, sub-sec. (3) of sec. 145 requires that at hast one copy of an order passed under sub-sec. (1) "shall" be published by being affixed to some conspicuous place at or near the subject of dispute. No compliance was made of this mandatory provision as well. The learned Magistrate has recorded a finding that it could not be ascertained as to how the accused got possession of the property. It appears that he has made no enquiry about the offence under sec. 451 I. P. C. alleged by the complainant. On the other hand, he has gone into the question of title by examining the evidence of the parties and then given an order to restore the possession of the house and the shops to the complainant. This was clearly beyond his jurisdiction, because sec. 145 comes into play only when a Magistrate is satisfied that a dispute likely to cause a breach of the peace exists between the parties. This section is not meant to give him the powers of a civil court to decide the respective claims of the parties. The reference is, therefore, allowed and Magistrate's order dated the 19th December 1949 is set aside. .;