YADAV, J. - (1.) THE instant revision is directed against the order passed by the learned Sessions Judge No. 1, Jodhpur dated 22. 8. 85 by means of which he had set aside pulpably illegal order passed by the Sub Divisional Magistrate on 1. 8. 81 releasing the property and holding one particular party in peaceful possession against the mandatory provisions contemplated under sub-section (1) of Section 145 Cr. P. C.
(2.) THE myopic order passed ;by the learned SDM on 1. 8. 81 is perse illegal and deserves to be deprecated. As a matter of course every court of law is required to act according to law enacted by the Legislature. THE learned SDM who passed the impugned order on 1. 8. 81 has no justification whatsoever to go behind the wisdom of Legislature and deciding the controversy u/s. 145 (1) Cr. P. C. making the order absolute u/s. 145 (6) Cr. P. C. on irrelevant and extreneous consideration which is not contemplated under the statute. According to the catena of judgments of appex court, once the Executive Magistrate satisfied about the apprehension of breach of peace at the time of passing the preliminary order, that preliminary order regarding apprehension of breach of pace will continue till the proceedings are finally decided within the meaning of Section 145 (6) Cr. P. C. unless it is challenged by any of the party by moving an application u/s. 145 (5) Cr. P. C. that no apprehension of breach of peace exists between the parties. It is well to remember that it is the apprehension of breach of peace which gives jurisdiction to an Executive Magistrate to proceed to decide the actual physical possession u/s. 145 (1) Cr. P. C. and once he is satisfied about the apphension of breach of peace at the time of passing the preliminary order, he cannot revoke that order unless anyone of the parties in the proceedings moved an application u/s. 145 (5) Cr. P. C. that no apprehension of breach of peace exists. It is apparent on the face of record that no such application was moved by either of the parties that no apprehension of breach of peace exists between them. Therefore, it was obligatory on the part of the learned Executive Magistrate to call upon both the parties to adduce their oral statement as contemplated under amended Section 145 (1 ). It is not his whim and fancy to decide the question of actual physical possession between the parties on the basis of his local inspection without giving an opportunity to test the veracity of his ex-parte local inspection by a party adversely affected by his such ex-parte local inspection report. It is true that a court of law has absolute jurisdiction to made a local inspection but once a local inspection is made he is required to transfer the matter to some other Magistrate to decide the issue and afford an opportunity to the person to challenge his spot inspection. Spot inspection should be written and it is required to be made a part of record. It is true that in the instant case the ex-parte inspection made by the Executive Magistrate on 31. 7. 81 is made part of the record but no opportunity to file objections to this inspection report was made available to the party. Once the Executive Magistrate made a local inspection and made his report in writing on 31. 7. 81 then in the interest of justice he ought to have transferred the matter to some other court giving an opportunity to the party adversely affected to file an objection and if necessary to cross-examine him. But this local inspection dated 31. 7. 81 cannot be made basis of his judgment deciding the actual physical possession or dropping the proceedings on the ground of non- existence of apprehension of breach of peace between the parties against the mandatory provisions contained u/s. 145 Cr. P. C. It is borne out from the impugned judgment of learned Additional Sessions Judge No. l, Jodhpur which is also supported from the order-sheets of the learned Executive Magistrate that the Executive Magistrate received the record on 17. 7. 1981 from this court and after receiving the record from this Court posted the case on 5. 8. 81 with a direction to issue notice to the parties to appear before him on the aforesaid date.
(3.) WITH anguish I have to observe that the learned Executive Magistrate did not await the service of notice to both the parties but for the reasons best known to him he fixed the date for local inspection and the relevant record was placed before him on 30. 7. 1981 and again on 31. 7. 1981 and on that day he made an exparte local inspection and found the present petitioner in peaceful possession over the land in dispute. On the aforesaid peculiar facts and circumstances of this case the learned Executive Magistrate capriciously decided the question of possession vide his order dated 1. 8. 81 holding that he found the present petitioner in peaceful possession over the disputed land, therefore, it was ordered that the parties are directed to maintain the status quo ante dated 31. 7. 81 and the non-petitioners were restrained to interfere in the peaceful possession of the present petitioner. In fact the aforesaid order will be deemed to have been passed u/s. 145 (6) Cr. P. C. which is perse illegal and without jurisdiction. In view of the aforesaid observations I am fully satisfied that the order passed by the learned Additional Sessions Judge No. l, Jodhpur under revision is eminently just and proper and does not require the indulgence of this court. ;