RADHA MOHAN S/O LAXMAN PRASAD Vs. RAJARAM VAISHYA

JUDGEMENT

(1.) THIS is a reference by the District and Sessions Judge, Bhind, recommending that the order of the S. D. M. Bhind dated 21-11-1956 dropping proceedings under section 145 Cr. P. C. should be set aside. The question for consideration is whether this Court in revision is competent to consider whether there was sufficient material satisfying the Magistrate that there was no more likelihood of the breach of the peace.

(2.) THE facts of the case are simple. Between the parties mentioned in the proceedings there was some dispute in regard to a piece of open land between their houses each claiming as usual that the land belonged to it and was in its possession. The police submitted a report for action under Section 145 Cr. P. C. on 14-9-1955. The Magistrate started proceedings and also attached the land pending disposal. After about 14 months the Magistrate passed an order that there was no more likelihood of a breach of the peace and, therefore, the proceedings should be dropped and the land released from attachment. One of the parties namely Radha Mohan, went in revision to the Sessions Court alleging that the Magistrate had no jurisdiction for holding that there was no likelihood of the breach of the peace and requesting that a report should be made to this Court for setting aside the order of the Magistrate and for directing a decision on merits of the claim to possession. The learned Sessions Judge has made a report in which he has held that the mere fact that there has been no further violence does not justify an inference that there would be no breach of the peace. He states that there was nothing in the order of the Magistrate indicating that there was really information that no breach of the peace was likely. The learned Sessions Judge does not doubt the competency of the Magistrate, and, in fact, his legal duty to drop the proceedings if he is satisfied that there might be no breach of the peace. In this case, however, he feels that the "source" from which the Magistrate decided that no breach of the peace was likely has not been divulged, and there is nothing to indicate how the Magistrate came to that finding. Therefore, he recommends that the order dropping the proceedings and releasing the land from attachment should be set aside and the Magistrate should be directed to continue the proceedings and give a finding on possession.

(3.) IN my opinion, the mere statement of the facts of the case show that the recommendation is ill-conceived. Whether in certain circumstances a breach of the peace may be apprehended is a matter for executive discretion. But once the magistrate in satisfied that a breach of the peace is likely between the parties both claiming to be in possession of land then he has to proceed judicially in the manner laid down under Section 145 Cr. P. C. In regard to his part in the assessment of the circumstances and tendencies towards a possible breach of the peace superior courts have no jurisdiction; that is, the superior courts cannot ask the Magistrate to proceed as if there might be a breach of peace, while he himself says that he is not satisfied that there is going to be any. . But once he decides that there is going to be breach of the peace he will have to proceed judicially under the law.