The Magistrate's jurisdiction to initiate a proceeding under Section 145 of the Code of Criminal Procedure is dependent on the existence of a dispute regarding immovable property and an apprehension of a breach of the peace. The Magistrate's order must record both the existence of a dispute regarding immovable property and the apprehension of a breach of the peace. Failure to do so renders the order invalid.

M.P.Verma, J.

1. Both these revision applications have been heard together, with the consent of the parties, as they arise out of the same order passed by the learned Magistrate in a proceeding under Sec.145 of the Code of Criminal Procedure, and this judgment will govern them both.

2. Criminal Revision No. 78 of 1969 has been filed by the sole member of the third party and Criminal Revision No. 153 of 1969 has been filed by both the sets of the fourth party to the proceeding. First party Bikku Sharma and second party Bhumi Sharma are cousins inter se, being the grand-sons of two brothers Baburam and Dattu, and they had really got the proceedings started. As a matter of fact, there was no Police report in this case about any apprehension of a breach of the peace because of the dispute regarding possession of immovable property. No party had filed any petition before the Magistrate that there was an apprehension of a breach of the peace and a proceeding under Sec.144 or 145 of the Code of Criminal Procedure should be started. The Sarpanch of the Gram Cutcherry, in agreement with the Mukhiya, with whom, perhaps, the first party was on bad terms, filed a report before the learned Sub-divisional Magistrate that there was an apprehension of a breach of the peace between the two parties concerning some land, and so the learned Magistrate initiated a proceeding under Sec.144 of the Code of Criminal Procedure (hereinafter referred to as "the Code"). That proceeding was started on the 21st February, 1966. The Sarpanch, in his report, stated that a partition suit, being suit No. 38 of 1965, was pending between the parties in the Court of the Subordinate Judge, Monghyr. On the 11th March, 1966, the first party filed a petition before the learned Magistrate requesting him to drop the proceeding under Sec.144 and to start a proceeding under Sec.107 of the Code against the second party. The learned Magistrate found that the grounds mentioned in the petition were not satisfactory and so he disallowed this prayer. On the 6th April, 1966, Newa Lal Sharma filed a petition before the Magistrate stating that portions of the disputed lands were in his possession and in possession of his nephew, Bachoo Sharma, and so he prayed to be added as a party to the proceeding. On the same day, Hirdi Sharma and Jantri Sharma filed a petition before the Magistrate for being added as parties on the ground that they were in possession of certain lands included in the subject-matter of the proceeding. The learned Magistrate, after hearing the parties, directed that the applicants be added as parties to the proceeding, and on the same day he passed the following order converting the proceeding under Sec.144 into one under Sec.145 of the Code.

"Heard learned Advocates of parties. There is a title suit going on between 1st and second parties for the lands. The other petitioners who have come today are also armed with documents. I am satisfied that there is a bona fide land dispute. It cannot be decided in summary proceedings under Sec.144, Criminal Procedure Code. Proceedings converted to one under Sec.145, Criminal Procedure Code and lands attached under Sec.145 (4) Criminal Procedure Code. Newalal Sharma and Bachoo Sharma be described as third party and Hirdi and Jantri as fourth party. Parties will file w/s documents and affidavits by 28-4-1966."

The case of the third and fourth parties was that they were in possession of certain portions of the disputed lands and they came to know of this proceeding when the Police had gone to the spot to harvest the standing paddy crops. Thereafter, they rushed to the Court of the Magistrate and applied before him to be added as parties to the proceeding. When the first and second parties found that the third and fourth parties were also claiming possession over a portion of the lands in dispute, they filed a compromise petition in the partition suit pending in the Court of Subordinate Judge, Monghyr on the 3rd Novembe