NAGENDRA PRASAD SINGH, J.

1. This application in revision is directed against an order, dated the 28th March, 1972, passed by the acting Sub-Divisional Magistrate, Siwan, purporting to convert in proceeding under Sec.144 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the "Code") into one under Sec.145 of the Code. The petitioners were members of the second party to the said proceeding.

2. It appears that, on the 30th October, 1971, the members of the first party-opposite party filed a petition before the Sub-Divisional Magistrate for action under Sections 107 and 144 of the Code against the petitioners, alleging, inter alia, that the petitioners were persons of desperate character and they were trying to take forcible possession of the lands of Khata No. 56, which were in peaceful possession of the opposite party. In the said petition they set out in detail their claim over the plots in question. The Sub-Divisional Magistrate sent the said petition to the local police for inquiry and report. After inquiry, the police submitted a report. On the 25th January, 1972, the Sub-Divisional Magistrate passed an order saying that from the petition filed by the members of the first party and the report of the police, he was satisfied that there was an apprehension of a breach of the peace in relation to five plots, namely, Plot Nos. 671, 830, 1086, 1142 and 1253, of Khata No. 56, measuring about 2 bighas 6 kathas and 7 dhurs, situate in village Nathu Chhap, P.S. Siwan. He therefore directed that a proceeding under Sec.144 of the Code be drawn up and the parties be called upon to show cause as to why the same be not made absolute against them. He further restrained both the parties from going upon the lands in question.

3. Both parties filed their show cause, and the learned Sub-Divisional Magistrate, after hearing the parties, on the 28th March, 1972 passed the impugned order. He has first mentioned the details of the disputed lands in the impugned order and thereafter he has referred to the aforesaid police report and as to how the proceeding under Sec.144 of the Code was drawn up and both parties were restrained from going upon the lands in question. Then he has stated that he heard both parties and looked into their show cause petitions from which it appeared to him that both the parties were claiming possession of the lands in question. The learned Magistrate, thereafter, set out in detail the respective claims of the parties to the lands in question. Towards the end he observed that, after perusing the record, he was satisfied that there was a dispute between the parties in relation to lands on account of which there was an apprehension of a breach of the peace, and, as such he was converting the proceeding under Sec.144 into one under Sec.145 of the Code. In this connection he also referred to an earlier proceeding under Sec.144 between the parties which had been dropped on the 26th October, 1971.

4. This case was first placed before a learned Single Judge of this Court, who has referred it to a Division Bench for consideration of the legality of the order in question.

5. Learned Counsel appearing for the petitioners has urged that the impugned order is, per se, illegal, inasmuch as the learned magistrate had no jurisdiction to convert the proceeding under Sec.144 into one under Sec.145 of the Code after the expiry of a period of two months, meaning thereby that the proceeding under Sec.144 had been drawn up on the 25th January, 1972, which, by lapse of the statutory period of two months, had lost its force, and, on the 28-3-1972 there was no proceeding under S.144 pending which could have been converted into one under Sec.145 of the Code.

6. Magistrates have been empowered by the Code to exercise certain powers for maintaining peace, and, for that, they can pass orders in exercise of the powers conferred under Sections 107, 144 and 145 of the Code, when there is an apprehension of a breach of the peace