A Sub-divisional Magistrate cannot make an order under sub-section (5) of section 145 Cr. P.C. without satisfying himself that it is proper to do so and without hearing the parties concerned.

1. - This revision petition is directed against the order of Sessions Judge, Jaipur District, dated January 9, 1973; by which he upheld the order of Sub-divisional Magistrate, Amber, dated October 24, 1972. It will be enough to state that one Kajod, who is not a party to these proceedings made a report on June 30, 1972, for taking action under section 145 Cr. P.C. in respect of a piece of land (mentioned in the report) on the ground that there was an apprehension of breach of peace on account of the dispute in regard to the land. The learned Sub-divisional Magistrate asked the police to investigate the matter, and it appears that Kajod also moved the police directly. The police made a report to the learned Sub-divisional Magistrate for taking action against the two sets of persons who have been mentioned as party No. 1 and party No. 2. The learned Sub-divisional Magistrate made a preliminary order on July 28, 1972. Before that order could be served on the present petitioners, Kajod presented an application in the court of the learned Sub-divisional Magistrate on October 24, 1972 stating that he sold the property in dispute to Sadhu Singh, who was a member of party No. (1 the present non-petitioners), that he had never made any report for taking proceedings under section 145 Cr. P.C. and that the disputed land was in the possession of the said Sadhu Singh. The learned Sub divisional Magistrate thereupon made an order declaring party No. 1 to be in possession as prayed by Kajod, and issued a direction to the Receiver accordingly. Party No. 2, the present petitioners, felt aggrieved against that order and approached the learned Sessions Judge, who dismissed their revision petition by the aforesaid order dated January 9, 1973. That party has therefore approached this court for a redress of its grievance.

2. It appears that the learned Sessions Judge misread the order instating in his impugned order that notices of the preliminary order of the learned Sub-divisional Magistrate were served on the parties, and that party No. 2 did not appear inspite of notice. It has rightly been argued by the learned counsel for the petitioners that this was not so because the record shows that the present petitioners were never served with the preliminary order and were not aware of the proceedings in the court of the Sub-divisional Magistrate. The learned Sessions Judge therefore clearly erred in basing his decision on incorrect facts and his decision is of no consequence.

3. As has been stated, the police had made a report that dispute likely to cause a breach of peace existed concerning, the land in question, within the meaning of section 145 Cr. P.C., between parties Nos. 1 and 2. It will be recalled that Kajod was not a member of any of these parties. Even so the learned Sub divisional Magistrate allowed his application dated October 24, 1972 to form the basis of his impugned order of that dates. That order, I have no doubt, was clearly erroneous because all that Kajod has mentioned in his aforesaid application dated October 24, 1972 was that he had sold the land in question to Sadhu Singh, who belonged to party No. 1 on November 6, 1971. The learned Magistrate failed to notice that fact, even if true, could be no consequence for purposes of taking a decision under Sub-section (5) of section 145 Cr. P.C. regarding the existence of the dispute in as much as the alleged sale was of a date very much anterior to the making of the preliminary order. Kajod had further stated in his aforesaid application that he had not given any information regarding the dispute, and that forged application might have been made in his name. He merely prayed for the release of the property from attachment, & for making it over to Sadhu Singh. If the application of Kajod had been read carefully, the learned Sub divisional Magistrate would have found that Kajod had not stated anything in it which could lead him to the conclusion that no such dispute as had led t