The omission to record the satisfaction of the existence of a dispute likely to occasion a breach of the peace is not a mere irregularity, and the Magistrate must have materials before him coercive enough to establish the likelihood of a breach of the peace.

Agarwala, J.

1. This is an application made to set aside an order passed in a proceeding Under Sec.145, Criminal P. C. The facts are that an Assistant Sub-Inspector of Police reported to the Sub-divisional Magistrate of Bihar that the chaukidar of village Mathura had made a report at the police station that certain persons were obstructing the ploughing of the field of Dukhit Singh, and that hence there was an apprehension of a breach of the peace, and that, in consequence of this, he, the Assistant Sub-Inspector, had been sent to the village by the Officer-in-charge of the police Station. The Assistant Sub-Inspector proceeded to state that he went to the village and asked the parties not to quarrel and to produce before him the evidence relating to their possession. Both the parties did this. The Assistant Sub-Inspector ended with a suggestion that notices Under Sec.144 of the Code should be issued to both parties. The Sub-Divisional Magistrate issued notices against both parties on 21-7-1947, restraining them from going to the land in dispute and calling upon them to show cause why the prohibitory order should not be made absolute. Both parties appeared and filed written-statements in which each of them denied that he was likely to commit a breach of the peace, but asserting that his opponent might do so. On 10th September, the Magistrate decided to convert the proceeding into one Under Sec.145, and issued a notice to each party that from the police report and from the show-cause petitions he was satisfied that a bona fide dispute relating to possession of the land in question existed between the parties, and he, therefore, required them to appear in his Court and put in their written-statements regarding possession over the subject-matter of the dispute. Thereafter, evidence in the case was heard, and the order complained of was made. The order is challenged on the ground that the Magistrate has nowhere recorded that he was satisfied of the existence of a dispute likely to lead to a breach of the peace. He did not state so in the notice which he issued to the parties, nor record it in the order-sheet, and his final order makes no mention of the existence of a dispute likely to occasion a breach of the peace. It is, therefore, argued that, although the Magistrate may have been satisfied that there was a bona fide dispute with regard to possession between the parties, there is no indication that he was satisfied that that dispute was likely to occasion a breach of the peace.

2. Sec.145 of the Code provides that whenever a District Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class is satisfied that a dispute likely to cause a breach of the peace exists concerning any land, he shall make an order in writing stating the grounds for his being so satisfied. The statute, therefore, quite clearly requires that the Magistrate shall be satisfied of the existence of a dispute likely to occasion a breach of the peace and requires him to make an order in writing, stating the grounds for his being so satisfied It is contended on behalf of the opposite-party, however, that the omission of the Magistrate to record that he is satisfied that the dispute between the parties is likely to occasion a breach of the peace is a mere irregularity to which Sec. 537 of the Code applies, and reliance is placed on the decision of a Full Bench of the Allahabad High Court in Kapoor Chand V/s. Suraj Prasad, 55 ALL. 301 : (A. I. R. (20) 1938 ALL. 264 : 34 Cr. L. J. 414 F. B.). The facts of that case were that one Suraj Prasad filed a petition Under Sec.145 of the Code alleging that his master Chunni Lal was in possession of a house, and that the opposite party were trying to interfere with that possession, with the result that there was likely to be a breach of the peace. The Magistrate took down the statement of Suraj Prasad on oath, and directed a police enquiry into the matter. On receipt of the police report he recorded t