Power for dropping of proceedings at any stage by the Magistrate.

The two questions raised in this Revision Case bear on the interpretation of section 145(5) of the Criminal Procedure Code. In respect of some lands with regard to the possession of which there had been a dispute, proceedings were started by the Sub-Divisional Magistrate, Kurnool, under section 145 of the Criminal Procedure Code on the basis of an apprehension of a breach of the peace. As required by the preliminary order under section 145(i), Criminal Procedure Code, written statements were put in by the parties concerned, each of them claiming to be in possession thereof, and the Magistrate proceeded to record evidence adduced by one of the parties. In the course of this enquiry he found that there was no dispute likely to give rise to a breach of the peace and dropped the proceedings under section 145(5), Criminal Procedure Code.

Mr. Chinnappa Reddy appearing in support of this Revision Petition against the order of the Sub-Divisional Magistrate dropping the proceedings, raised two questions: (i). Whether once the written statements were filed and evidence was recorded, it was within the competence of the Magistrate to drop the proceedings ? and (2) whether he could do it suo motu without being asked to do so by one of the parties to the proceedings or someone interested therein?

As regards the first point, what is urged by the learned counsel is that the expression " any party so required to attend " in sub-section(5) denotes the stage at which the proceedings could be dropped. In other words, it is argued by him that it is only after the preliminary order is issued and before the Magistrate enters upon an enquiry into the possession of either of the parties that the proceedings -could be dropped. The learned Counsel contends that otherwise there is no meaning in using the words " so required " and the Legislature could as well have used the words "any party", the expression "so required" being redundant and instead would have said " at any stage of the proceedings ". Though this argument appears , to be apparently attractive, it looks to me that it is not susceptible of that construc-‘ tion. In my opinion, the expression " so required ". cannot have that denotation. It only referes to a party who has been required under sub-section (1) to appear in Court. The interpretation sought to be placed by the counsel for the petitioners cannot be accepted especially having regard to the juxtaposition of the sub-section to the sub-section(4) which deals with inquiry as to possession. In considering whether a Magistrate can drop proceedings at any stage of the enquiry it is well to remember that the foundation of jurisdiction for proceedings under section 145 is the apprehension of a breach of the peace and when once the Magistrate feels that there is no continuance of this apprehension, it is open to him to drop the proceedings.

In this context the remarks of a Full Bench of the Calcutta High Court in Manindra Chandra Nandi v. Barada Kanta Chowdhry1, may usefully be noted.

"The procedure provided by section 145 is intended solely for the purpose of preventing a breach of the peace where a dispute ex1sts concerning any land, or water, or the boundaries thereof, which dispute, if no proceedings were taken, would be likely to cause a breach of the peace. The institution of such proceedings is a matter entirely within the discretion of the Magistrate. The existence of a dispute likely to cause a breach of the peace is a condition precedent absolutely necessary to give the Magistrate jurisdiction to enter upon an inquiry as to possession. There is a current of rulings of this Court by which it has been held that it is a necessary preliminary condition to proceedings under section 145, that a Magistrate, acting under the provisions of that section, shall record an order stating the grounds of his being satisfied that a dispute likely to cause a breach of the peace in fact ex1sts. Any enquiry as to possession that is made under the prov