SARJOO PROSAD, C. J. - (1.) THIS is a reference made by the learned Additional Sessions Judge of Ganganagar for quashing an order dated 28th Feb. , 1960 passed by the Munsif Magistrate, Bhadra in a proceeding under sec. 145 of the Code of Criminal Procedure.
(2.) IT appears; that the proceedings were initiated in respect of a dispute as to certain Chabutras. The learned Magistrate held that the Manila Bal Kalyan Kendra was in possession of the said Chabutras and restrained the Municipal Board, Bhadra and other non-applicants from interfering with the possession of the Mahila Kendra, and from putting up wooden stalls on the Chabutras. An order was also passed by the Magistrate directing removal of the wooden stalls already put up on the Chabutras in question. The proceedings were taken upon an application filed by Shri Ramswaroop on behalf of the Mahila Bal Kalyan Kendra. It was alleged that on both sides of the main gate of the building of the Kendra there were two platforms or Chabutras; and on 12th May, 1959 the Municipal Board, Bhadra which was the opposite party and its office-bearers got an wooden stall of applicant no. 4 put up on one of the platforms. A suit for perpetual injunction had then to be instituted by the Mahila Kendra and in that suit temporary injunction was granted in favour of the applicants. In spite of this, on the 15th of May, 1959 the office bearers of the Municipal Board, Bhadra, ordered some of the other opposite parties (Nos. 5 to 8) to put up wooden stalls on the Chabutras. On the 8th of June, 1959 Ram Swaroop forbade the opposite party from proceeding to erect stalls, but they were in no mood to listen to him and there would have been a breach of the peace but for the intervention of some of the other persons present. Accordingly, the proceedings under sec. 145 of the Code of Criminal Procedure were initiated on behalf of the Municipal Board and it was claimed that the Chabutras did not belong to the Society or Mahila Kendra and that the Board had every right to rent out the Chabutras in question for erection of stalls to the other opposite party. One of the grounds on which the learned Additional Sessions Judge has made the reference is that while drawing up the preliminary order the learned Magistrate did not satisfy himself that there was any apprehension of breach of the peace. Having regard to the facts stated earlier it is obvious that there was an apprehension of breach of the peace and the Magistrate |when he drew up proceedings under sec. 145 of the Code of Criminal Procedure must have been satisfied in his mind as to the existence of such an apprehension. It is for the Magistrate to be satisfied whether or not an apprehension of breach of the peace exists and in the circumstances I see no reason to hold that in drawing up proceedings under S. 145 of the Code the Magistrate acted without jurisdiction or without a judicial consideration of the fact whether or not an apprehension of breach of peace was imminent on account of the existing dispute between the parties about the possession of the Chabutras. His jurisdiction is not affected merely because he has not recorded a formal order stating that an apprehension of a breach of peace exists, provided there are materials on record to show that such an apprehension was justified. I am unable to appreciate the attempt of the learned Additional Session Judge, to enter into an unnecessary and elaborate discussion of the matter. Even the words in Hindi which have been quoted in his order, if reasonably interpreted, would go to indicate that an apprehension of breach of the peace was there, which justified the Magistrate in adopting the preventive procedure under sec. 145, Criminal Procedure Code. The next ground on which the Additional Sessions Judge has made the reference is that the Munsiff Magistrate Bhadra having already passed an injunction order m favour of the Mahila Kendra in a civil suit instituted for the purpose and having directed removal of wooden stalls from the Chabutras, the Magistrate should have dismissed the application under sec. 145 of the Code of Criminal Procedure. The learned Judge appears to ignore the fact that in spite of the order of the Civil Court, there could still be an apprehension of breach of the peace. In such a case, it is the duty of the Magistrate to take preventive action under sec. 145 of the Code; and then if necessary to proceed against the party seeking to disturb lawful possession and commit breach of the peace under sec. 107 of the Code. There is no point in the observation of the learned Additional Sessions Judge that civil case and a criminal proceeding can not simultaneously go on in regard to the same subject matter. I am sure the learned Additional Sessions Judge realises that sec. 145 of the Code of Criminal Procedure empowers the Magistrate to take action in case of dispute as to possession of immovable property with a view to avoid an imminent breach of the peace. The order as to possession passed in the proceeding is subject to the order which may be eventually passed by a competent court declaring title and possession of any party over the disputed property. Therefore, there is nothing to prevent the Magistrate from taking action under sec. 145 of the Code, even when a civil suit is pending between the parties in respect of the same subject matter. The scope of the proceeding under sec. 145 of the Code is quite different. If there was any doubt on the point, the matter has since been set at rest by the decision of the Full Bench of this Court in Tikuda Vs. The State decided on 9th May, 1960 (1 ). The learned Judge has then gone into the evidence in order to come to its own decision on the question of possession in supersession of the finding of the Magistrate. He was not called upon to do so, in making a reference to this Court which he ought to know generally lies only on questions of law. I hope the learned Judge will appreciate that it is no use taking up his own time and that of this Court by making references of this nature. The reference, therefore, is rejected. .;