Bapna, J.—This is a reference by the learned Sessions Judge of Merta.

2. On 9th January 1948, Bhanwar Lal made an application to the Second Class Magistrate Parbatsar purporting to say that he was in possession of his Doli land under Bakania Bera in village Nenia and had cultivated the same but that the opposite party Har Singh, Jagirdar of the village, was preventing him from taking away a portion of the crop already lying there and had been preventing him from entering the land, and that there was an apprehension of a breach of the peace. The Magistrate, who was empowered under the law in force at the time to take cognisance of such complaint, fixed the case for next day for statement of the petitioner. On that day he recorded the statement and passed the following order : —

"Applicant with his counsel present. His statement recorded. The case may be registered under sec. 145 Cr. P. C. and preliminary order be issued. Put up on 30th January 1948."

Thereafter, Hari Singh filed a written statement disputing the possession of Bhanwar Lal. He asserted his own possession and denied that there was any likelihood of a breach of the peace. Evidence was recorded by various Magistrates before whom the case was put up from time to time and was concluded by the first Class Magistrate, Nagaur. Arguments were heard and on 5th May 1951, the First Class Magistrate of Nagaur dismissed the complaint on the ground that the Second Class Magistrate, Parbatsar, did not record an order under sec. 145 Cr. P. C. in the manner it should have been drawn and the subsequent proceedings were vitiated. He did not decide the matter on the merits. On revision, the learned Sessions Judge of Merta has recommended that the order of the First Class Magistrate, Nagaur dated 5th May 1951 was illegal and should be set aside and the case may be sent back to that court to decide the matter afresh according to law. An observation was made that if the Magistrate thought that there was an irregularity in the preliminary order which might affect the merits of the case, it was his duty to restart from that stage.

3. The reference is opposed on behalf of Hari Singh and it is urged that the preliminary order does not show that the Magistrate was satisfied on any of the two grounds which gave him jurisdiction to start proceedings under sec. 145 of the Code. It was argued that the order does not show that he was satisfied that there was a dispute concerning the land and that such a dispute was likely to cause the breach of peace. Learned counsel relied upon Basdeo vs. Badri Narnin (A.I.R. 1952 Allahabad 186), Dirgopal Singh vs Rambrich Singh (A.I.R. 1951 Patna 412), Ramchandra vs. Bhairon-bux (1951 R.L.W. 504), and Dude-chand vs. Manakmal (1951 R.L.W. 129). All the cases are, however, distinguishable.

4. In the Allahabad case, the order of the Magistrate on an application presented to him was : "S. O. Sarai Mamrez; Please enquire and report. If there is an apprehension of breach of peace, the property in dispute may be attached and compliance report, should be sent to this court before 10.7.48." It was observed by their Lordships of the Allahabad High Court that the words "if there is an apprehension of breach of peace" indicated that the Magistrate himself was not satisfied that there was an apprehension of the breach of the peace at that time. There are further observations that the Magistrate never had occasion to apply his mind to this matter even after receipt of the police report and to consider whether it contained any material on which he was satisfied as to the existence of any dispute likely to cause breach of peace. He merely directed the parties to be summoned for a specific date.

5. In the Patna case, the proceed-ings were started under sec. 144 Cr. P. C., but later on converted into those under sec. 145 Cr. P. C. The parties had been examined before the issue of the preliminary order and each of them denied that he was likely to commit a breach of the peace. The orde

Click Here to Read the rest of this document