The absence of a preliminary order by the Magistrate as required by Section 145(1) of CrPC can vitiate subsequent proceedings.

Suresh Kait, J.

Vide instant petition, the petitioner has challenged the notice issued to petitioner under signature of Reader to SDM.

2. Mr. Sandeep Sethi, Sr. Advocate appearing on behalf of the petitioner has submitted at bar that except this notice there is no order on record passed by the ld. SDM, which is mandatory under Section 145 of CrPC. For the convenience the Section 145(1) is reproduced as under:-

"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 the peace exists concerning any land or water or the boundaries thereof, within his local jurisdiction, 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 his 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".

3. Mr. Sethi, Senior Advocate in support of his argument has relied upon the judgment of this court in Nirmal Singh v. Harinder Singh Grover 169(2010)DLT 428 being passed by this court while referring Mathuralal v. Bhanwarlal and Anr. (1979) 4 SCC 665, has inter alia held as follows:-

"Section 145 contemplates, first, the satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists concerning any land or water or their boundaries, and, next, the issuance of an order, known to lawyers practising in the Criminal Courts as a preliminary order, stating the grounds of his satisfaction and requiring the parties concerned to attend his Court and to put in written statements of their respective claims as regards the fact of actual possession of the subject of dispute. A preliminary order is considered so basic to a proceeding under Section 145 that a failure to draw up a preliminary order has been held by several High Courts to vitiate all the subsequent proceedings. It is by making a preliminary order that the Magistrate assumes jurisdiction to proceeds under Section 145 & 146.

4. In the above referred case Nirmal Singh (supra) the issue was similar and impugned notice dated 07.12.2005 wherein written as under:-

"3. The impugned notice dated 7.12.2005 issued to the petitioner and three other persons, reads as follows:

"Where as ...... case has been made before me and you are hereby informed through the notice. You are hereby required to appear in person or by pleader on 3.1.2006 at 3:00 p.m."

5. Though, Co-ordinate Bench of this court while dealing with the issue in the above referred case called the judicial file of the SDM, and satisfied himself, however, when a Senior Advocate has made a statement at bar therefore, no occasion to disbelieve the same.

6. This Court in Jagdish Gandhi and Anr. v. State and Anr. 153 (2008) DLT 64 has also followed the decision in Mathuralal (supra) while taking note of various other decisions of other Courts. The relevant extract from the aforesaid decision reads as under:-

"12. In this case, it will be seen from the facts stated above as to whether the provision of Section 145 Cr. P.C. has been properly complied with or not. The order under Section 145 (1), Cr. P.C. was passed by the SDM on 05.05.2004 in order to take preventive action under Section 145 Cr. P.C., two essential conditions must be satisfied (1) there must be dispute relating to land or other objects mentioned in Sub-section (1) and (ii) the dispute is likely to cause a breach of peace. If there is no dispute there is no obligation on the part of the SDM to pass orders under Section 145 Cr. P.C. The SDM exercising jurisdiction under this section must be satisfied about these two conditions either from a police report or from any other information, which must include an application, by the dispossessed person. The term satisfied is of considerable expansiveness, which means free from anxiety, doubt, perplexity, or