Importance of determining possession as directed by higher court and the need to follow procedural directions in such cases.

1. - Perused the impugned order dated 6.3.1998 passed by learned Magistrate whereby he has dropped the proceedings under section 145(5) Cr.P.C. holding that there is no apprehension of breach of peace. Once there is no apprehension of breach of peace, and the proceedings initiated under section 145(5) Cr.P.C. are dropped_ In the impugned order, the learned Magistrate has held that Ganesh Mal (respondent No. 2) was in possession of the disputed land two months prior to the passing of the order. Obviously either the learned Magistrate could have declared the possession of Ganesh Mal over the land in dispute under section 145(6) Cr.P.C. or dropped the proceedings.

2. Earlier on revision by the petitioner against order dated 16.4.1990, the learned Sessions Judge, Jalor remanded the case to the learned Magistrate with the direction to record statement of the parties and thereafter decide the matter in accordance with law. After remand without recording evidence as ordered by the learned Sessions Judge, the learned Magistrate passed the impugned order on the application of Ganeshmal dated 25.10.1996, which is bad in the eye of law and consequently the order dated 6.3.1998 is set aside and the case is remanded back to the learned Magistrate either decide to determine the possession of a party over the disputed land as directed by the learned Sessions Judge in the earlier revision or drop the proceedings without going into the merits if no breach of peace is apprehended.

3. The petition is disposed of in the above terms.Petition disposed.

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