Judgment

FAZAL ALI, J.:- This appeal by special leave involves a short point of law. Proceeding under S. 145 was started by the Magistrate against the respondents on the basis of a police report. After passing a preliminary order on the 29th July, 1976 ( wherein the Magistrate had recorded reasons for his being satisfied that a breach of the peace existed), the Magistrate called upon the parties to file their written statements and then after a full enquiry as provided by S. 145 the Magistrate passed the final order on 17th July, 1978 declaring the appellant to be in possession of the land in dispute. Against this order, the respondents moved the High Court under S. 482 Cr. P. C. for quashing the order of the Magistrate. The High Court found that as there was no clear finding by the Magistrate in the final order that there was an apprehension of breach of the peace, therefore, the final order was bad and the High Court accordingly allowed the petition and remitted the case to the Magistrate.

2. We have heard counsel for the parties and in our opinion the High Court erred in holding that the final order of the Magistrate was vitiated in absence of a finding that breach of the peace existed at the time the order was passed. It is not disputed that in the preliminary order there was a clear finding by the Magistrate that apprehension of breach of the peace did exist which was sufficient to give jurisdiction to the Magistrate to initiate the proceeding. When the parties filed their written statements, they did not state that no dispute between the parties existed but whereas one party said that there was no apprehension of breach from their side the other side took the stand that there was an apprehension of breach of the peace.

3. Thus the stand taken by the two parties was contradictory hence it must be taken for granted that the apprehension of breach of peace continued to exist and it was not a case where it could be said that no dispute existed, as contemplated under S. 145 (5) Cr. P. C.

4. After considering the record and evidence produced by the parties, the Magistrate passed the final order in favour of the appellant.

5. The High Court thought that it was absolutely essential for the Magistrate to give a finding that a breach of peace existed even in the final order. It may have been proper if the Magistrate had given a finding on this aspect of the matter also but in the circumstances it can be safely presumed that apprehension of breach of peace existed and such a finding was implicit in the final order passed by the Magistrate so it was not necessary for the Magistrate to repeat what he had said in the preliminary order in the final order also. Moreover, mere absence of finding by the Magistrate in the final order in the circumstances as mentioned above cannot be such a manifest defect so as to attract the extraordinary jurisdiction of the High Court under S. 482 of Cr. P. C.

6. It is, therefore, manifest that a finding of existence of breach of the peace is not necessary at the time when a final order is passed nor is there any provision in the Code of Criminal Procedure requiring such a finding in the final order. Once a preliminary order drawn up by the Magistrate sets out the reasons for holding that a breach of the peace exists, it is not necessary that the breach of peace should continue at every stage of the proceeding unless there is clear evidence to show that the dispute has ceased to exist so as to bring the case within the ambit of sub-section (5) of Section 145 of the Code of Criminal Procedure. Unless such a contingency arises the proceedings have to be carried to their logical end culminating in the final order under sub-sec. (6) of S. 145. As already indicated the contradictory stands taken by the parties clearly show that there was no question of the dispute having ended so as to lead to cancellation of the order under sub-section (5) of S. 145 nor was such a case set up by any party before the Magistrate or