ORDER

Chandra Prakash, J. - This is a reference made by Shri Sushil Kumar, II Civil and Sessions Judge, Bulandshahr, by his order dt. 1-5-1972 by which he has recommended the order of the learned Magistrate dropping the proceedings and directing release of the property in favour of Gaon Samaj to be quashed. The reference has been made in the following circumstances:

One Dhannoo moved an application u/s 145 Code of Criminal Procedure on 20-9-1970 alleging that he was in cultivatory possession of the plots in dispute and there was an apprehension of breach of peace from the side of Patiram and others. The learned Magistrate after being satisfied that there was a dispute regarding possession of immovable property and there was a likelihood of the breach of peace passed a preliminary order on 13-10-1970 and the plots in dispute were attached Dhannoo, who was the first party and Patiram and others, who were the second party, filed their respective written statements. They asserted their own possession and filed affidavits and some documentary evidence in support of their respective claims. After going through these documents and the affidavits the learned Magistrate came to the conclusion that there was no imminent danger of breach of peace and at any rate, at the time of passing the final order the apprehension of breach of peace had ceased to exist. He, therefore, dropped the proceedings u/s 145 Code of Criminal Procedure and released the disputed plots in favour of Gaon Samaj holding that these plots had been attached from the possession of Gaon Samaj.

Against the above order both the first party as well as the second party filed revisions before the Sessions Judge of Bulandshahr. The learned Sessions Judge after hearing the counsel of the parties came to the c inclusion that the question has not been considered by the learned Magistrate in proper prospective and the non-existence of the breach of peace subsequently will not affect the merits of the case. He, therefore, held that that order of the learned Magistrate dropping the proceedings u/s 145 Code of Criminal Procedure was wrong. He, therefore, recommended that that order along with the order of releasing the property in favour of the Gaon Samaj should be set aside and he should dispose of the case in accordance with the provisions of Section 145(5) Code of Criminal Procedure.

2. Both the first party as well as the second party have challenged the order of the Court below before me. The contention of Dhannoo, first party, before me is that the learned Magistrate erred in dropping the proceeding' u/s 145 Code of Criminal Procedure and in any case the plots attached should have been released in his favour. The contention of Patiram and others, second party, is that the proceedings were rightly dropped by the learned Magistrate when he realised that the apprehension of breach of peace no longer existed. It was also contended that the property was attached from the possession of the second party and should have been released in their favour.

3. Nobody has appeared on behalf of the Gaon Samaj.

4. After hearing the counsel of the parties as well as the Govt. Advocate on behalf of the State I have come to the conclusion that the learned Magistrate erred in dropping the proceedings and the reference should be accepted.

5. The learned Magistrate has based his findings on the assumption that in order to have jurisdiction u/s 145 Code of Criminal Procedure there should be imminent danger of the, breach of peace. Section 145 Code of Criminal Procedure only contemplates a dispute likely to cause a breach of peace concerning any land or immovable property. It does not speak of any imminent danger of the breach of peace.

6. While holding to drop the proceedings u/s 145 Code of Criminal Procedure the main reasoning of the learned Magistrate is that although there may have been a dispute likely to cause a breach of peace before but such breach of peace did not exist at the time of passing the fina