A Magistrate has no jurisdiction to drop proceedings under Section 145 of the Criminal Procedure Code without first recording a finding that he is satisfied that there is no apprehension of breach of the peace. A Magistrate also has no jurisdiction to lift the attachment and direct one party not to interfere with the possession of the other party over the land, as this is an order that can only be passed after the conclusion of the enquiry under Section 145.

In this reference under section 438 of the Criminal Procedure Code, hereinafter called the Code, the learned Additional Sessions Judge recommends that the order dated 16-6-1966 by which the sub-divisional Magistrate, Bishenpur, dropped the proceedings under Section 145 of the Code and lifted the attachment in favour of the first party with the direction that the opposite party should not interfere with the possession of the first party over the land in dispute should be quashed.

2. The facts of the case may first be briefly summarised. On 22-11-1965 the Officer-in-charge of the Police Station, Bishenpur, reported to the sub-divisional Magistrate that there was serious probability of "clash and blood-shed" between the two parties respecting their right to harvest the crop standing on some patta land in the village. The Magistrate after studying the report and examining the Officer-in-charge of the Police Station directed that proceedings under Section 145 be drawn up and he simultaneously attached the land in dispute. The two parties involved in the conflict were summoned and in course of time they put in their written statements. On 16-6-1966 only the first party was present before the Magistrate and that party prayed that the proceedings be dropped inasmuch as the second party had failed to put in appearance on no less than four hearings. The learned Magistrate was of the opinion that, the repeated absence of the second party was indicative of the fact that they had "no more interest in the disputed land". He, therefore, dropped the proceedings and lifted the attachment "in favour of the first party" and gave the direction that the second party shall not interfere with the peaceful possession of the first party over the land in dispute. The second party having felt aggrieved with the Magistrates order dated 16-6-66 took the matter in revision before the Sessions Court.

3. The revision petition came up for hearing before Shri P. N. Roy, the Additional Sessions Judge. He reached the conclusions, as gathered from his reference made to this Court, that the Magistrate had no jurisdiction to drop the proceedings without first recording the finding that he felt satisfied that, there was no apprehension of breach of the peace, that such a finding was never recorded by the Magistrate, and that the Magistrate had acted illegally in lifting the attachment and directing the second party not to interfere with the possession of the first party over the land. In view of these legal infirmities in the order of the Magistrate, the Additional Sessions Judge was of the opinion that it could not be sustained and so he recommended that it should be set aside.

4. Unfortunately, the counsel for none of the parties to the dispute has turned up in this Court today. Only Shri N. Ibotombi Singh, the Government Advocate, has put in appearance on behalf of the Union Territory. Shri Ibotombi Singh supports the recommendation made by the learned Additional Sessions Judge in its entirety.

5. The proceedings initiated under Section 145 can be dropped only in terms of sub-section (5) thereof. That sub-section provides that nothing in the section shall preclude any party required to attend the Magistrates Court or any other person interested, from showing that no dispute exists or has existed. In such a case, the section states further, the Magistrate shall cancel his preliminary order, and all further proceedings thereon shall be stayed. It is apparent that the preliminary order can be cancelled only if the Magistrate feels satisfied that no dispute concerning the land involved exists at present or had existed before. Mere representation of one party to the case that dispute does not exist or had never existed cannot constitute justification for cancellation of the order. It is therefore, the finding of the Magistrate that the dispute does not exist at present or had not existed before which alone can provide him the legal sanction for cancellation of the p