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Criminal Revision No. 4 of 1959, decided on 17th March 1959.

S. 145‑Magistrate can drop proceedings at any stage if' satisfied that there was no likelihood of breach of peace‑Not bound to give parties opportunity to establish contrary.

It is open to a Magistrate who has passed a preliminary order under section 145 of the Criminal Procedure Code, 1898, directing the parties to file written statements as regards their respective claims to possession of the subject‑matter in dispute, subsequently to drop the proceedings if he is satisfied that there was no likelihood of a breach of the peace, and he is not bound to give the parties an opportunity to establish the contrary.

Donapudi Narasyya and another v. Chinguluri Venkian and others I L R 49 Mad. 232 ; Velur Devasthanam by its Head Clerk, R. Ramaswami Pillai v. A. Sambandamurthi Nainar 58 Cr. L J 1145 ref.

Sastu Sahu and others v. Nathuni Thakur and others 26 Cr. L J 105 distinguished.

A. Latif Biswas for Petitioners.

Siddique Ahmed Chowdhry for Opposite‑Party.

This Rule is directed against an order of Mr. G. R. Chowdhury, Sessions Judge, Khulna, dated 28‑11‑58, dismissing the petition of the petitioners as against the order of Mr. A. N. M. S. Alam, .,Sub‑Divisional Magistrate, Satkhira, dated 19‑7‑58, dropping the proceedings under section 145 of the Code of Criminal Procedure and vacating the attachment and sale orders.

2. The petition discloses that on the report of the police, Satkhira, to the effect that there was an apprehension of a breach of the peace over the possession and cultivation of some plots of lands lying in the Alipur beel, described in the Schedule of the report, between the 1st party‑opposite party and the second party petitioners headed by petitioner No. 1, the learned Sub‑Divisional Magistrate, being satisfied as to the existence of the apprehension of a breach of the peace, drew up a proceeding with respect to the said land against the opposite parties as first parties and the petitioners as the second party under section 10 of the Code of Criminal Procedure on 14‑6‑58 and both the parties were restrained by that order from entering on the said land and exercising any act of physical possession over the land mentioned in the Schedule which was also attached and the parties were asked to file written state ments by 9‑7‑58.

3. On 25‑6‑58, the second party, it is alleged, appeared and prayed for the sale of the attached lands upon which the learned Magistrate passed an order for sale of the attached lands after informing both the parties.

4. On 9‑7‑58, one of the opposite parties appeared and prayed for time to file a written statement and, on the same date, three other persons filed a‑petition claiming the dis puted lands.

5. It is alleged that on 19‑7‑58, before the filing of the written statement by any of the parties, the aforesaid learned Magistrate dropped the proceedings and vacated the attachment and sale orders stating inter alia that since the police‑report considerable time had passed, but there was no overt act and the case appeared to him to be of a civil nature.

6. Thereafter the petitioners moved the Sessions Judge as above without success. Hence this revision.

7. Mr. Abdul Latif Biswas, the learned Advocate for the petitioners, has been taking time as found from the order‑sheet for appearance in this case and has not appeared even to‑day while the other party has come ready, nor had Mr. Biswas got this matter mentioned this morning. So, the Court cannot keep the matter pending any more.

8. The only ground worth considering in the petition is ground No. 2 which is as follows :‑

" For that the order of the learned Sub‑Divisional Magis trate dropping the proceedings under section 145, Criminal Procedure Code, is illegal and without jurisdiction in view of the fact that he, having been satisfied on police‑report, with respect to the immediate apprehension of a breach of the peace over the possession of the lands under proceedings, under section 145, Criminal Procedure Code, drew the proceedings under that section and attached the lands and, in assuming jurisdiction to drop the proceedings, the learned Magistrate must have materials before him as to the non‑existence of the appre hension of the breach of the peace and, in the absence of such materials, only the passing of time without any overt act where the lands of proceedings are under attachment under section 145, Criminal Procedure Code, and the parties are restrained from exercising acts of physical possession will not warrant him to assume jurisdiction in dropping the proceedings and, as such, his order is not maintainable in law ".

9. The ground has been worded in unwieldy fashion but the sum and substance seems to be that Mr. Biswas is not satisfied with the manner in 'which the learned Magistrate dropped the proceedings under section 145 of the Code of Criminal Procedure.

10. The learned Magistrate came to the finding after hearing both the parties and perusing the papers.

11. It cannot be said that the learned Magistrate's order is based simply on the fact that considerable time had elapsed since the police‑report, nor is it correct to say that the learned Magistrate dropped the proceedings simply because he was con vinced that it was a case of a civil nature.

12. As borne out by the judgment of the revisional Court, Atiur Rahman and two others had filed a petition before this learned Magistrate claiming the possession over the disputed land and denying the allegation of apprehension of a breach of the peace and asserting that none of .the first and second parties were in possession of the disputed land.

13. Under those circumstances, it cannot be said that the Magistrate had no materials before him in justification of his dropping the proceedings.

14. Mr. Siddique Ahmed Choudhury, the learned Advocate for the other side, has referred to the decision in the case of Donapudi Narasyya and another v. Chinguluri Venkian and others (I L R 49 Mad. 232), which indicates that it is open to a Magistrate who has passed a preliminary order under section 145 of the Code of Criminal Procedure directing the parties to file, written statements as regards their respective claims to possession of the subject -matter in dispute subsequently to drop the proceedings if he' is satisfied that there was no likelihood of a breach of the peace, and he is not bound to give the parties an opportunity to establish the contrary.

15. He has further cited the decision in the case of Velur Devasthanam by its Head Clerk, R. Ramaswami Pillai v. A. Sambandamurthi Nainar (58 Cr. L J 1145), according to which also a Magis trate can drop proceedings at any stage if he comes to the conclusion that there is no apprehension of a breach of the peace, and, according to this decision, the Magistrate may drop the proceedings at any stage and it is not obligatory upon him to take evidence before dropping the proceedings, and it is not necessary that the Magistrate should give any opportunity to the parties to establish the contrary.

16. Mr. Abdul Latif Riswas, the learned Advocate for the petitioners, has come in at this stage when the judgment has almost been fully delivered and has cited the decision in the case of Sastu Sahu and others v. Nathuni Thakur and others (26 Cr. L J 105) in support of his stand. In that case, it was held that an order striking off a case under section 145 of the Criminal Procedure Code without making a final order as contemplated by law is wholly illegal. It was further held that there must be some material before the Magistrate to come to the con clusion that there is apprehension of a breach of the peace.

17. This case does not seem to improve the position in any way in favour of the learned Advocate. All that this case states is that there should be some materials before the Magistrate and, as stated before, there were materials before the learned Magistrate in justification of his finding that there was no further apprehension of a breach of peace.

18. The case is such that, even if Mr. Biswas had appeared in time, it would not have improved much.

19. In the result, the Rule is discharged.

K. B. A. Rule discharged.

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