SHARMA, J. - (1.) THIS is a reference by the learned Sessions Judge, Jhunjhunu, recommending that the order dated 27th October, 1952, of the Extra Magistrate, First Glass, Jhunjhunu, dropping the proceedings under sec. 145 of the Code of Criminal Procedure be set aside.
(2.) THE Magistrate's explanation has been received. None of the parties has appeared. I have considered the explanation as well as the order of the learned Sessions Judge and that of the learned Magistrate. I have also gone through the record. After a number of witnesses for Ramkumar and others (hereinafter to be referred to as the first party) had been examined, application was made on their behalf to give them an opportunity to produce more evidence. This application was rejected, and the learned Magistrate, without giving any opportunity to Th. Sampati Vikram Deo (hereinafter to be referred to as the second party) cancelled the preliminary order made in the case, and dropped the proceedings. Against this order the second party went in revision to the Sessions Court at Jhunjhunu, and the learned Sessions Judge has made this reference holding that the Magistrate ought not to have dropped the proceedings without there being any material on the record to show that no dispute as referred to in sec. 145 (1) existed or had existed. The Magistrate in his explanation has said that he had no jurisdiction to proceed with the case, as soon as he was satisfied that no dispute as contemplated by sec. 145 (1) of the Code of Criminal Procedure existed or had existed. He was satisfied from an oral report of the Sub-Inspector that no such dispute existed, and, therefore, coupled with the fact that the evidence of the first party did not show that there was any longer an apprehension of the breach of the peace and during the last two years no complaint was made about any such apprehension he thought it proper to drop the proceedings. I have considered the provisions of sec. 145 (1) of the Code of Criminal Procedure. According to the said provision, nothing in sec. 145 shall preclude any party required to attend in response to a notice under sec. 145 (1) or any other person interested from showing that no such dispute as mentioned in sec. 145 (1) exists or has existed, and in such case the Magistrate shall cancel his preliminary order passed under sec. 145 (1), and all further proceedings thereon shall be stayed, but subject to such cancellation, the order of the Magistrate under sub-sec. (1) shall be final. From a peroral of the record it appears that neither of the two parties showed that no such dispute as contemplated by sec. 145 (1) existed or had existed. There is also nothing on the record to show that any other person interested brought such thing to the notice of the learned Magistrate. So far as can be gathered from the learned Magistrate's order, he simply dropped the proceedings because he found that there was no mention of any apprehension of a breach of the peace in the evidence produced by the first party in response to the notice under sec. 145 (1), and also because during the 2-1/2 years, no complaint about apprehension of a breach of the peace had been heard. These are not the grounds on which the learned Magistrate could cancel his preliminary order. If any party or any other person interested wanted to show that no dispute, as contemplated by sec. 145 (1), existed or had existed, he ought to have put satisfactory material on the record in order to show that his allegation was correct. Even in his explanation the learned Magistrate does not say that he received any information from the parties concerned or from any other person interested that there was no longer any breach of the peace. The learned Magistrate says in his explanation that the power of the Magistrate to drop the proceedings is not limited to the circumstances mentioned in clause (5), and that he is entitled to drop the proceedings on his own initiative, whenever he is satisfied that there is no further likelihood of a breach of peace without giving an opportunity to the parties to show by evidence that there is a likelihood of criminal breach of peace. For this view he relies on a ruling of the Patna High Court in Sastu Sahu and others vs. Nathuni Thakur and others (1) ( (1925) Criminal Law Journal 105 =a. I. R. 1924 Pat. 689. ). It appears that probably the learned Magistrate did not go through this decision, as it was held that "it may be that if the Magistrate gets information from any source whatsoever that there is no longer any apprehension of a breach of the peace he would be entitled to drop the proceeding, but where there is absolutely no material before the Magistrate to come to the conclusion that there was no further apprehension of a breach of the peace his order dropping the proceedings is illegal. " There the order of the Magistrate was set aside. The learned Magistrate also referred to another ruling of the Calcutta High Court, viz, Abdur Rahman Bhula vs. Dinesh Haldar and others (2) (XXXIII C. W. N. 399. ). But in that case there was a police report, which showed that the likelihood of a breach of the peace no longer existed. In that case also there was material before the Magistrate on which he could proceed. The facts of that case are, therefore, distinguishable from the facts of the present case. The learned Magistrate asserts that a Magistrate will not be acting illegally if he drops the proceedings after being satisfied upon the information given by a third party that the dispute no longer exists, and relies on Gothi-pathi Suryanarayana vs. Shree Raja Aukeneed Prasad Bahadur and others (3) (25 C. L. J. 978.), and Manindra Chandra Nandi vs. Barada Kanta Chowdhry (4 ). But in Gothipathi Suryanarayana's case (3) there was a petition of the niece of the zamindar who stated that she had compromised the matter in dispute between herself and the zamindar who was the first counter-petitioner. There was thus material before the Magistrate upon which he could came to the conclusion that there was no longer any danger of the breach of the peace. This ruling also does not apply to the facts of the present case. In Manindra Chandra Nandi vs. Barada Kanta Chowdhry (3) the order of the Magistrate dropping the proceedings under sec. 145 suo moto on the ground that from the information received there was no danger of a breach of the peace was not interfered with. In that case the said order was made before any written statement was filed by the other side, and in the order itself the Magistrate had mentioned what that information was. His order was, therefore, not interfered with particularly on the ground that under sub-sec. (3) of sec. 145 of the Code of Criminal Procedure of 1898, as it then stoods proceedings under sec. 145 were not revisable. In Santokh Singh and another vs. Ram Singh and others (5), relied on by the learned Magistrate, the Magistrate had received information from which he was satisfied that there was no longer any breach of the peace. Moreover, the order was not interfered with, as that was also a case before the amendment of Criminal Procedure Code in 1923 when sub-sec. (3) providing that order under sec. 145 would not be revisable was repealed. Again, he says in the end that if the Magistrate is fully satisfied that there was no further likelihood of a breach of the peace, the Sessions Judge or the High Court will not direct him to be satisfied as to such likelihood and to revive the proceedings after they have been stayed by the Magistrate. It appears that here too be did not care to read the ruling of the Calcutta High Court, viz, Manindra Chandra Nandi vs. Barada Kanta Chowdhry (1) (I. L. R. 30cal. 112.), relied upon by him. That was also a ruling which was given when sub-sec. (3) formed part of sec. 145. The learned Magistrate ought to have known that since that judgment was given, the Code of Criminal Procedure has been amended in 1923, and sub-sec. (3) has been deleted. The question in the present case is whether there was any material before the Magistrate on which he could cancel his preliminary order under sec. 145 (1 ). The only material relied upon by the learned Magistrate is that in the evidence of the first party there was no mention of the continuance of the danger of the breach of the peace, and that during the last two or two and a half years no complaint had been made about such breach. The Magistrate ought to have known that often the preliminary order had been made, it was not necessary for the parties to produce any evidence with respect to the continuance of the danger of the breach of the peace. The only thing which was necessary for them was to produce evidence with respect to their respective position. The fact, therefore, that in their evidence the parties did not say that there was any longer any danger of the breach of the peace does not mean that there was no such danger. Similarly, the fact that no complaint was made during the last 2 or 2-1/2 years could not show that there was no such danger. There ought to have been some information before the learned Magistrate to show that danger of the breach of the peace on longer existed. There is no mention whotsoever of any such information in the order of the learned Magistrate. He has not mentioned that he was satisfied by the verbal report of the Sub-Inspector that there was no such danger. In the absence of any such mention in his order it is too late in the day to come forward with an explanation that it was on the oral information of the Sub-Inspector that the Magistrate was satisfied that there was no danger of the breach of the peace. Even in cases under sec. 145, Magistrates cannot be given such a long rope. The proceedings are judicial proceedings, and the order dropping the proceedings under sec. 145 must be based on judicial considerations. Even an order dropping the proceedings under sec. 145 cannot be allowed to be made arbitrarily or capriciously. The learned Magistrate thinks that he had such an order, no higher court would have any power to revise that order. Sooner the learned Magistrate revises this opinion of his, the better it is. The reference is accepted, the order of the learned Magistrate dated 27th October, 1952, dropping the proceedings is set aside, and the case is sent back to him to dispose it of in accordance with law. .;