The petitioner invited the Additional First Class Magistrate, Gannavaram at Vijayawada to take action under section 145, Criminal Procedure Code, in respect of Survey No.90 in the village of Paidikondalapalam. The Magistrate passed a preliminary order under section 145(1), Criminal Procedure Code, on 8th October, 1953. Subsequently on 2nd January, 1954, he dropped proceedings on the ground "No breach of peace can be apprehended in the near future ". The present petition has been filed to set aside this order of the Magistrate.

The argument of the learned counsel for the petitioner is that once a Magistrate starts proceedings under section 145, Criminal Procedure Code, by issuing a preliminary order under sub-section (1) of that section, he is bound to go on with the enquiry and complete it and decide one way or the other as to who was in possession on the relevant date and that he has no discretion whatsoever to drop proceedings. In support of this contention he referred to the decision in Amritlal N. Shah v. Nageswara Rao1.

At page 350 Kuppuswami Ayyar, J., stated as follows:

"This is not a case in which matters should have to be dropped by reason of section 145(5). It is only