Sharma, J. - (1.) THIS is a reference by the learned Sessions Judge, Jhunjhunu in a case under sec. 145 of the Criminal Procedure Code. Party No. 1 are Balgovind and others and party No. 2 are Mahadeva and one other. Party No. 1 moved the police that there was danger to the breach of the peace over a certain nohra and baithak situated in the town of Ganganagar in Jhunjhunu District and that proceedings be taken under sec. 145 of the Criminal Procedure Code. The police moved the court of the Sub-Divisional Magistrate, Jhunjhunu and a preliminary order was passed on the 21st of March, 1950, calling upon the parties to file their written statements and produce evidence with respect to the fact of their actual possession In pursuance of the notice, party No. 2 filed written statement on the 28th of April, 1950, in which was denied that their was any danger to breach of the peace. Party No. 1 could not be served before the 22nd of August, 1950, on which date, they appeared and filed a written statement stating that they were in possession of the property in dispute. 28th of September, 1950, was fixed for the evidence of the first party but they failed to produce the evidence. Party No. 2 insisted that there was no danger to breach of the peace and the court might satisfy itself by inspecting the locality. A certain commissioner was appointed to inspect the locality and make a report. Thereafter, the case was transferred to the court of the Extra Magistrate, Chirawa, and in the meanwhile the Court of Extra Magistrate, Chirawa having been abolished, the case was sent to the court of Extra Magistrate, Jhunjhunu. The case was taken up on the 13th of Nov. , 1950, in the court of the Extra Magistrate, Jhunjhunu and it was ordered that notices be issued to party Nos. 1 and 2 again as their notices had not been returned. The case was next taken on the 13th of October, 1950, but on the said date, the notice to party No. 1 came back unserved. On the 4th of January, 1951, the party No. 1 appeared but no witnesses were produced and it was prayed that time be given for the production of witnesses. Party No. 2 again stressed that there was no danger to breach of the peace. On the 21st January, 1951, and 28th of February, 1951, the witnesses for party No. 1 again did not appear and on the 9th of April, 1951, the party No. 1 applied that adjournment of four months be given as one of "the witnesses of party No. 1 was ill. The court found itself unable to adjourn the case for four months but adjourned the case to 21st and 22nd of May, 1951, for the evidence of party No. 1 The case was again adjourned and 11th, 12th and 13th of June, 1951, were fixed for the evidence of the witnesses for party No. 1, but the witnesses were again not produced and the case was adjourned to 2nd, 3rd, 4th and 5th of July, 1951. Again on the said dates, no witnesses appeared on behalf of the first party and party No. 2 moved an application that because the case had been pending for 1-1/2 yrs. and there was no danger to breach of the peace, proceedings be dropped. The learned Magistrate heard the arguments, but deferred judgment and in the meanwhile fixed 7th, 8th, 9th and 10th of August, 1951, for the evidence of the witnesses for party No. 1. Only one witness for party No. 1 namely Prahlad appeared and no other witness appeared and therefore, 13th of August, 1951, was fixed. On the 13th of August, 1951, the case was adjourned for want of time and again on the 27th of August, 1951, the same was adjourned because one of the witnesses namely Ram Avtar for the first party had been transferred from the place to which summons was sent. On the 28th of August, 1951, when the case was taken up next, no witnesses were present for the first party and the case was adjourned to the 24th and 25th of September, 1951. On the 24th of September, 1951, again no evidence was produced and three witnesses for party No. 1 namely Pahlad, Surjan Singh and Sanwal Singh who previously appeared did not appear on that date inspite of information. The learned Magistrate, therefore, applied his mind to the question whether there was any danger to breach of the peace and after satisfying himself that there was none, he cancelled his preliminary order and dropped the proceedings, on the 25th of September, 1951.
(2.) AGAINST this order of the learned Magistrate, party No. 1 went in revision to the court of the Sessions Judge, Jhunjhunu who has made this reference and has, recommended that the order, regarding cancellation of the preliminary order be set aside and the case be sent back to the Magistrate for decision according to law. I have heard Miss Shakuntala Sharda on behalf of the first party, she has supported the reference. On behalf of the second party, Mr. C. B. Bhargava the Deputy Govt. Advocate has opposed the reference. I have considered the arguments of both the learned counsel and have gone through the record of the case. I do not find it necessary to go into the question whether the preliminary order was properly made, or not or if not properly made, whether the defect was curable as I find that even if the preliminary order was perfectly valid, the learned Magistrate had the power to cancel! the preliminary order under sec. l45 (5) of the Criminal Procedure Code, if it was shown to him that no dispute with respect to immovable property in question existed which was likely to cause a breach of the peace. It was argued by Miss. Sharda that there was no evidence on the record to show that danger to breach of the peace did not exist or no longer existed and therefore, the learned Magistrate was not justified in cancelling his preliminary order. It is true that no sworn testimony was produced before the court to prove that no danger to breach of the peace existed. However, to my mind under sec. 145 (5) it is not necessary that only on the strength of sworn testimony the Magistrate is entitled to cancel his preliminary order. Sec. 145 (5) does not show that the Magistrate can cancel his preliminary order only in case it was proved that no dispute regarding breach of the peace existed. The word used are "nothing in this section shall preclude any party so required to attend, or any other person interested, from showing, that no such dispute as aforesaid exists or has existed". This shows that there should be some material for the Magistrate for his holding that no danger to breach of the peace existed either from the very beginning or any longer. In this case, party No. 2 said in their written statement that there was no danger to breach of the peace. This written statement was filed on the 28th of April, 1950. Thereafter, on more than one occasion, party No. 2 repeated before the court that there was no danger to breach of the peace. Ulti-marely on the 2nd of July, 1951, party No. 2 made an application showing that there was no danger to breach of the peace and that the case had been unnecessarily dragging on for about a year and a half. It was prayed that the proceedings be dropped. The learned Magistrate, heard arguments yet he did not pass any order' then and there and gave the first party another opportunity to produce his witnesses, but they could not be examined upto the 24th of September, 1951. The learned Magistrate, therefore, applied his mind to the question whether there was any danger to breach of the peace and looking to the averments of the second party that there was no danger to breach of the peace as welt as to the circumstances although the property was not attached yet the court had not been moved that the property should be attached otherwise there was imminent danger to breach of the peace and also to the fact that in spite of opportunities being given to the first party no evidence could be produced, he came to the conclusion that there was in fact no danger to breach of the peace and the case was unnecessarily dragging on. He consequently, cancelled his preliminary order on the 25th of September, 1951. I am unable to find any fault with the order of the learned Magistrate. No doubt the learned Magistrate has unnecessarily dis-cused the question of the validity or invalidity of the preliminary order in his judgment but he has also addressed himself to the question whether there was any danger to breach of the peace and whether there was material on which it could be held that such danger existed or not. After carefully considering that question, he has recorded his order. The learned Sessions Judge says that he does not find any material on the record for coming to the conclusion that there was no likelihood of the breach of the peace relating to the subject of dispute. It appears that the learned Sessions Judge probably thought that there should have been soma material in the shape of sworn testimony in order to show that danger to peace did not exist. I do not think that he was right in taking this view. I am unable to accept the reference and it is rejected. . ;