The Magistrate's power to drop proceedings under Sec.145(5) of the Code is limited to cases where it is shown that no dispute existed or has existed, or where there is no danger of a breach of the peace.

Raj Kishore Prasad, J.

1. This is a reference under Sec. 438 of the Code of Criminal Procedure (hereinafter referred to as "the Code") made by the learned Additional Sessions Judge of Singhbhum at Chaibassa, recommending that the order dated the 14th April, 1961, of the learned Magistrate of Saraikella dropping the proceeding under Sec.145 of the Code should be set aside.

2. Put briefly, the facts are these. The subject matter of dispute was Khata 108, consisting of 26 plots, including Bandh and trees in this Khata in village Bakarpur. On the 27th May, 1960 the police submitted a report for action under Sec.144 or Sec.145 of the Code against both the parties. On the 30th May, 1960, a proceeding under Sec.144 was initiated against both the parties. On the 27th July, 1960, the said proceeding under Sec.144, which was a fore-runner of the proceeding under Sec.145, was converted into one under Sub-section (1) of Sec.145 of the Code. In course of the enquiry, both the parties filed affidavits of their witnesses and also filed documents in support of their respective cases.

3. It appears that on the 23rd July, 1933, the first party got delivery of possession through Court over all the plots appertaining to Khata 108. It further appears that in 1945 the second party filed a title suit against the first party for declaration of their title to and recovery of possession over 12 plots, out of the 26 plots in dispute, after relinquishing their claim to the rest. That suit was dismissed on the 31st January, 1947. During the recent survey settlement proceedings the second party are recorded only in respect of plot 63 (which is wrongly mentioned as plot 83), whereas, the first party are recorded in respect of the remaining 25 plots. The first party, however, have applied for correction of the entry regarding plot 63 under Section 83 of the Chotanagpur Tenancy Act.

4. Even on the foregoing facts, the learned Magistrate by his order under reference, dropped the proceeding under Sec.145(1) of the Code, on five grounds; (1) that the evidence in the shape of affidavits is equally balanced; (2) that considerable period had elapsed between the date of delivery of possession in 1933, in favour of the first party, and the present proceeding in 1960, and, therefore, the additional evidence in the shape of the delivery of possession in favour of the first party could not be conclusive on the question of possession; (3) that none of the witnesses in their affidavits filed on behalf of the first party has stated anything about the existence of apprehension of breach of the peace, and, therefore, it means that no apprehension of breach of the peace exists; (4) that the fact that plot 63 (wrongly mentioned as 83) has been recorded in the name of second party and the remaining plots recorded in the name of the first party shows that both the parties have possession over the disputed lands; and, (5) that where both parties have possession over the subject matter of dispute no definite order can be passed, and, if any order is passed, it cannot be enforced. For these main reasons, therefore, he dropped the proceeding and directed the parties to seek their remedy in the Civil Court.

5. To answer the reference, we have to read the relevant provision of the Code on this question, which is Sub-section (5) of Sec.145. Sec.145 (5) is in these terms;

"145(5). Nothing in this section shall preclude any party so required to attend, or any other person interested from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final".

6. The scheme of sec. 145 of the Code is that in the first place a Magistrate has to be satisfied that there is a dispute likely to cause a breach of the peace, and, if he is so satisfied, he has to make an order under S