Sharma, J. - (1.) THIS reference has been made by the learned Sessions Judge, Sikar, recommending that the order of the Sub-Divisional Magistrate, Sikar, dated 5th July, 1952, in favour of Bagha Ram (hereinafter to be referred to as the complainant) against Bage Khan, Azim Khan, Asghar Khan, Sadool Khan and Sheo Bux (hereinafter to be referred to as the opposite parties) be set aside. The circumstances leading to this reference are as follows: -
(2.) THE complainant filed an application before the Sub-Divisional Magistrate, Sikar, on the 14th of June, 1951, against the opposite parties, and it was alleged that he had cultivated 17 kahcha bighas of land of plots Nos. 12 to 15 in Kirdoli, but Bage Khan and Asghar Khan asked the opposite party Sheo Bux to cultivate those fields, and were forcibly preventing the complainant from proceeding with his cultivation, by which there was an apprehension of the breach of the peace. On this application, the learned Magistrate examined the complainant and being satisfied that there was an apprehension of a breach of the peace, made a preliminary order on the 16th of June, 1951, calling upon the parties to file their written statements respecting their relative possession, and produce such evidence as they thought proper. Both the parties produced their evidence, and the learned Magistrate was satisfied that the possession was with the complainant. He, therefore, made an order in favour of the complainant, that he was entitled to remain in possession of the property in dispute till he was evicted in due course of law. Against this order Bage Khan went in revision to the Court of Sessions Judge, Sikar, who has made a recommendation to this Court that the order be set aside, because there was not enough material before the Magistrate to assume jurisdiction under sec. 145 of the Code of Criminal Procedure, inasmuch as the complainant had failed to prove that there was any show of force or any force was used by any of the opposite parties. I have heard Mr. Shah Allimuddin Ahmad on behalf of the applicant and Mr. C. L. Agrawal on behalf of the complainant. It was argued by Mr. Shah Allimuddin Ahmad that in the evidence produced by the complainant in the presence of the applicant there was not a word to show that there was any danger to the breach of the peace. The final order in favour of the complainant could not, therefore be made. Rulings in the cases of Dudechand vs. Manakmal (1) (1951 R. L. W. 129.), Hari Charan De vs. Sherali Talukdar (2), Nurul Hasan and another vs. Mst. Majidan (3) were referred to. On behalf of the complainant, it was argued that it was not necessary at the stage of the final decision to go into the question whether the complainant had been able to prove that there was any danger to the breach of the peace. This question arose at the stage the preliminary order was made, and the learned Magistrate had specifically said in that order that he was satisfied that there was danger to the breach of the peace, and he had also given his reasons for that. After the preliminary order, the only thing that was necessary was to ask the parties to file their respective written statements with respect to possession, and produce their evidence. This the parties did, and, therefore, the only question that arose at the time of the final decision was which party was in possession at the time of the preliminary order or two months before it. The learned Magistrate was, therefore, perfectly justified in dealing with the question of possession only at the time of his final decision. Ofcourse, if any party wanted to show that no such dispute, as is contemplated by sec. 145 (1) Cr. P. C. existed, it was for that party to show it, and then the Magistrate could cancel his preliminary order. This was not shown to the Magistrate, and, therefore, the Magistrate was perfectly entitled to try the question of possession and decide it in favour of the party which in his opinion had succeeded in proving it. The learned counsel cited authorities of the Allahabad High Court, and relied on the observations of the learned Judges in the case of Nurul Hasan and another vs. Mst. Majidan (3) (A. I. R. (31) 1944 All. 210.) and Hari Charan De vs. Sherali Talukdar (2) (A. I. R. 1932 Cal. 60.), which were cited by the learned counsel for the applicant himself. He also relied upon the decision in the case of Shibnarayan Das and others vs. Satyadeo Prasad and others (4) (A. I. R. (30) 1943 Patna 44. ). I have considered the arguments of both the learned counsel for the parties. The first step under sec. 145 is that contemplated by sub-sec. (1), according to which a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is empowered to issue a notice to the parties concerned in a dispute likely to cause a breach of the peace concerning any land or water etc. within the local limits of his jurisdiction, to attend his court in person or by pleader within a time to be fixed by such Magistrate to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, whenever he is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists. Then under sub-sec. (3) there is provision for the service of notice, and sub-sec. (4) deals with the enquiry as to possession. Under sub-sec. (6) the Magistrate makes his final order in favour of the one party or the other regarding possession. Thus it is clear that at the time of the final order the Magistrate is not required to go into the question regarding breach of the peace. The only thing that he has got to see is as to which party is proved to be in possession of the subject-matter of dispute at the time of the preliminary order or within two months before it. Of course, under sub-sec. (5) a party is not precluded from showing that no such dispute, as is contemplated by sub-sec. (1) exists or had existed, and if the Magistrate is satisfied he may cancel the preliminary order. Unless such a question is raised, the Magistrate need not bother himself about the question regarding breach of the peace. The ruling of this Court, which has been cited by the learned counsel for the applicant, has no bearing on the facts of the present case. In the case of Dudechand vs. Manakmal (1) (1951 R. L. W. 129.) the applicant feared that a breach of the peace would occur a considerable time ahead. There was therefore, no present fear, and in the preliminary order there was not a word about breach of the peace. A Single Judge of this court, therefore, held that the Magistrate was not entitled to assume jurisdiction in a case where there was no present fear of a breach of the peace. In the case of Ramchandra vs. Bhaironbux (2) (1951 R. L. W. 504) cited by the learned counsel for the applicant, there was no preliminary order under sub-sec. (1) of sec. 145 at all, nor was there any material to show that there was any danger of a breach of the peace. It was, therefore, held that the Magistrate was not justified in assuming jurisdiction under sec. 145 (1) Cr. P. C. In the present case the learned Magistrate has clearly said on his preliminary order that he was satisfied that there was a danger of the breach of the peace. He has also given his grounds for being so satisfied. He has said that from the statement of the complainant he was satisfied that there was such a danger. It is not necessary for this Court to see whether the material upon which the Magistrate was satisfied was sufficient or not. So long as there was any material which could be legally considered for the purpose of forming an opinion as to whether there was any danger of a breach of the peace, this Court will not go into the question of its sufficiency. I do not find anything in the Calcutta and Allahabad cases cited by the learned counsel for the applicant to support him. The very wording of sec. 145 (1) says that whenever a District Magistrate etc. is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists, he may make a preliminary order. In the present case there was information supplied by the complainant not only by way of his complaint but also on his examination on oath that there was a dispute likely to cause a breach of the peace. It cannot be said that the Magistrate was not justified under the law on this material to come to the conclusion that there was a danger of the breach of the peace. In the present case there is no question that there was no present fear of the breach of the peace. The complainant has definitely said on oath that he had cultivated the field, and as soon as he would go to look after the cultivation, he had apprehension that there would be violence on the part of the opposite parties, and he, therefore, apprehended a breach of the peace. I do not find any justification for interference with the order of the learned Magistrate. The reference is consequently rejected. .;