BHATTACHARJEE, ACTING C., J.

( 1 ) IN reporting this case under section 438 of the Code of Criminal Procedure, 1898, that being the Code still applying in Sikkim, the learned Sessions Judge has confessed his inability to understand the nature of the proceeding initiated by the lower Court, the procedure followed therefore and the provisions of law applied and invoked therein. All the learned counsel appearing before him for the panics, including the learned Public Prosecutor appearing for the State, however submitted that the proceeding, which was initiated, purported to be under section 145 of the Code, and the learned Sessions Judge also having decided to proceed on that basis, reported the case to this Court for necessary orders, as according to him, not only the impugned order was passed in utter non-compliance with the provisions of section 145 of the Code, but was also of a nature which could not be passed under that Section.

( 2 ) AFTER hearing the learned counsel for the parties and also the learned Public Prosecutor for the State, I have no doubt that the learned Magistrate, if he intended or purported to proceed under section 145 of the Code, had no clear idea as to when and how to proceed under that section and as to what types of order can be passed there under. I would, however, like to note that when Rules in Revisional matters are issued and copies of the revisional applications are sent to the Magistrates for the purpose of ascertaining what they might have to say regarding the allegations made in such applications, then; as pointed out, among others, in the Calcutta decision in Upendra Nath Paul v. Bankim Chatterjee1 it is the duty of the Magistrates below to peruse such applications and to give such explanations as are necessary regarding the points raised or at least to state that they have nothing to add if they are of opinion that their orders and the records of the proceedings contain all that can be said by them on the points raised. Such a course, if adopted, would go a long way to have the Revisional Courts from being landed in confusion, as has happened in this case.

( 3 ) UNDER section 145 of the Code Criminal Procedure, the Magistrate is required to decide which party was in possession and to issue and order declaring such party to be entitled to possession until evicted there from in due course of law, but the Magistrate cannot direct a party to take possession of the property which was not in this possession or restore a party to possession of the disputed property, unless the Magistrate proceeds under the Second Proviso to sub-section (4) of the section and finds such a person to have been forcibly and wrongfully dispossessed from the property within two months next before the order. But a bare perusal of the last sentence of the impugned order of the learned Magistrate, d8tpd 20. 4. 1982, reading as the possession of the disputed area be taken by the 0/p as both the parties state that this portion is not being possessed by either since the dispute would leave no manner of doubt that the learned Magistrate went entirely beyond and jumped too far away from his jurisdiction under section 145 by ordering restoration of possession to one of the parties simply and solely on the ground that none of them was in possession.

( 4 ) BUT that apart, the impugned proceeding must also be regarded to be incompetent under Section 145 as there is no material on record to show that, concerning this disputed land there was at any point of time any dispute likely to cause a breach of the peace. Accepting, as one may, that absence of a formal record by the Magistrate as to his being satisfied as to the existence of a dispute likely to cause a breach of the peace, does not, by itself, vitiate a proceeding, it must also be accepted that absence of anything on the record to suggest any likelihood of such dispute would render the entire proceeding without jurisdiction. While it is true that if a Magistrate proceeds to tak

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