A Magistrate can initiate proceedings under Section 145 of the Cr.P.C. based on the existence of an apprehension of breach of peace, using discretion informed by available evidence.

JUDGMENT :

(Harish Kumar, J.)

Heard Mr. Baxi S.R.P. Sinha, learned Senior Advocate with Mr. Mrigendra Pratap Singh, learned Advocate for the petitioner, Mr. Roy Saurabh Nath, learned Advocate for opposite party no.2 and learned APP for the State.

2. The petitioner is aggrieved by the order dated 23.05.2023 passed by the Sub-Divisional Magistrate, Sadar Gaya in Misc. Case No. 295 of 2023 by which the proceeding initiated under Section 144 of the Cr.P.C. has been converted into Section 145 of the Cr.P.C.

3. Learned Senior Advocate for the petitioner assailing the impugned order has contended that the land/property, in dispute is bearing plot no. 20348 over which both the parties are claiming their right, title and interest. On 20.03.2023, an application was filed by the opposite party no.2 alleging therein that the property, in question, is being managed by Gaya Pal Brahman. One Bapaji Bhaiya was the member of Managing Committee. Later on, members of his family described the temple as private temple and they tried to capture the land and erected boundary wall. Many times, proceeding under Section 144 of the Cr.P.C. was initiated and decided in favour of the Committee, but the opposite party no.2 declaring the land of the temple as his private property, wanted to make construction over it, which is being opposed by the members of the Committee. Thus, a prayer was made to restrain them by making any construction and to maintain the law and order situation, so that no untoward incident may take place.

4. On the basis of the aforesaid application, Vishnupad police station instituted Non-FIR P.S. Case No. 06 of 2023. A report has been submitted with a recommendation for action under Section 144 of the Cr.P.C. The Sub-Divisional Magistrate (Sadar), Gaya on being satisfied that on account of land dispute there is every chance of breach of peace directed both the parties not to act in any manner resulting into breach of peace.

5. Being aggrieved, the petitioner filed Cr. Rev. No. 58 of 2023. The aforesaid case was admitted and notices were issued to the opposite parties. In the meantime, the proceeding under Section 144 of the Cr.P.C. converted into a proceeding under Section 145 of the Cr.P.C. vide order dated 25.05.2023, which is put to challenge before this Court.

6. Learned Senior Advocate questioning the aforenoted order primarily submitted that the order clearly reveals that there is no apprehension of any breach of peace and, as such, there was no reason or occasion to convert the 144 Cr.P.C. proceeding into proceeding of 145 of the Cr.P.C. Learned Senior Advocate drew the attention of this Court to Section 144 of the Cr.P.C. and submitted that this power can be exercised only in a case of apprehension of danger. However, the materials available on record clearly suggests that there was no apprehension or danger. It is further contended that Section 145 of the Cr.P.C. clearly says that whenever an Executive Magistrate is satisfied from a report of a police officer or upon other information that a dispute likely to cause a breach of peace exists concerning any land or the boundaries thereof, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend a court in person or by pleader, on a specified date and time, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. However, no such ground exist to convert the proceeding and initiate a proceeding under Section 145 of the Cr.P.C.

7. Adverting the aforesaid submissions, noted hereina