The Magistrate's discretion in initiating a proceeding under Section 145 of the CrPC must be exercised in accordance with the well-recognized rules of law.

Jalim Mian, who is the first party in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as "the Code") in the Court below, has filed this revisional application for quashing of the Magistrate's ORDER :, dated the 22nd April, 1972, whereby he has initiated the proceeding between the parties in respect of the disputed land consisting 2 kathas on the southern side of plot no. 984, under khata no. 132, within Ramgarhwa Bazar, in the district of Champaran (the total area of the plot being 3 kat has 19 dhurs). This proceeding appears to have commenced in the following circumstance.

2. Regarding the disputed land, a proceeding under Section 107 of the Code was stated against the petitioner Jalim Mian. That proceeding was between Jalim Mian, and Raghunath Prasad and others. On the 9th September, 1971, the Magistrate heard Jalim Mian on his petition to start a similar proceeding under Section 107 of the Code against the opposite party Raghunath Prasad and others, as an apprehension of breach of the peace was alleged at their hands also. On that day, the Magistrate called upon the other side to show cause by the 24th September, 1971 why a proceeding under Section 107 of the Code should not be drawn up against them. In due course, they showed cause and both sides heard on the 24th March, 1972, and ORDER :s were reserved for the 22nd April, 1972, with a direction to the parties to file their documents in the meantime. On the 22nd April, 1972, the Magistrate passed the impugned ORDER :. Since the dispute related to land and, notwithstanding the previous rule under Section 144 of the Code having been made absolute against Raghunath Parasad as also pendency of a proceeding under Section 107 between them, the controversy continued and gave rise to an apprehension of breach of the peace, the Magistrate thought it worth while to initiate a proceeding under Section 145 of the Code to decide the matter once for all. On those reasons, he decided to draw up the impugned proceeding and called upon the parties to file their written statements, affidavits and documents in support of their respective claims by the 25th May, 1972. Simultaneously, he attached the lard in dispute under Section 145 (4) of the Code. Being aggrieved by this ORDER :, the petitioner Jalim Mian has preferred this revision to have it set aside.

3. The case of the petitioner is that, by virtute of a private partition between the two owner branches of this plot no. 984, which took place in 1945 the disputed land (southern 2 kathas) fell to the share of two brothers, Maimuddin and Zainuddin, who subsequently (in 1952) gave it in usufructuary mortgage to one Thakur Sah. On the 4th January 1963, the said mortgagors sold it to the petitioner under a registered sale deed for Rs. 1,500/-, out of which the vendee paid Rs. 700/- in cash to the vendors and Rs. 800/- to the mortgagee, which had been left in deposit with him (vendee) for such payment. Thereafter, the petitioner got into physical possession of this land and has been enjoying it since then. In the partition of 1945, the northern 1 katha 19 dhurs of this plot had fallen to the share of the other branch, Noor Mohammad, who subsequently sold 5 dhurs each to two different persons and en the rest inducted tenants. Subsequently, there was a proceeding under Section 144 of the Code between the petitioner and the opposite party with respect to this land which was eventually made absolute against the opposite party on the 26th August, 1971. While that proceeding under Section 144 was going on, the opposite party filed Title Partition Suit No. 114 of 1971 in the court of the Subordinate Judge at Motihari against the petitioner and others as defendants. In that snit, which, is still pending, the opposite party has sought for a declaration of his title to 2 kathas 15 dhurs of this plot by virtue of its purchase from Noor Mohammad's daughter, Fatima, on the 26th April, 1971, and also for bei