JUDGMENT

G.C. Mathur, J. - This case has been referred to a larger Bench by Shukla, J. as he has doubted the correctness of the decision of S. D. Singh J. in Raja Ram v. Mata Prasad, 1968 AWR 247 The case arises in the following circumstances.

2. An application under section 145 CrPC was made by Munnu Singh opposite party on December 16, 1966. The SDM ordered the Station Officer to make a report. The report waw made on December 31, 1966 and on February 6, 1967 the SDM passed the preliminary order. The stated therein that from the police report he was satisfied that there existed an apprehension of a breach of the peace. After the order was served on the parties both the parties filed their written-statements on April 28, 1967. In the statement filed by the applicants, who were opposite parties before the SDM they raised a plea that there was no dispute likely to cause a breach of the peace. The applicant filed five affidavits and these affidavits also stated that there was no apprehension of a breach of the peace. The SDM passed ed the final order on April 26, 1968 holding that Munnu Singh was in possession and directed the property to be released in his favour. Against the final order the applicants filed a revision. One of the points raised at the hearing of the revision was that the SDM should have recorded a finding whether there was an apprehension of the breach of the peace or not, when that question was raised before him by the applicant. The ADM (J) who heard the revision agreed with this contention and made a reference to this Court recommending that the revision be allowed, inter alia, on the ground that it was obligatory on the SDM to give a finding on the existence of the apprehension of the breach of the peace. He relied on the decision in Raja Ram's case. The reference came up for hearing before Shukla, J. Who finding himself unable to agree with S.D. Singh, J. has made a reference to a larger Bench.

3. Sub-S. (1) of S. 145 of the CrPC provides that when a Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land etc. he shall make a preliminary order stating the grounds of his being so satisfied, requiring the parties to attend his court, to file their written statements, documents and affidavits. Sub-S. (4) enjoins upon the Magistrate to decide the question whether any and which of the parties was in possession of the property at the date of the preliminary order. Sub-S. (5) gives the right to a party to show that no dispute likely to cause a breach of the peace exists or has existed and if he succeeds in doing so the Magistrate is required by this sub-section to cancel the preliminary order. The preliminary order is, subject to an order u/sub-S. (5), final. The question which arises for consideration in this case is whether if, after the making of the preliminary order, a party or any other person raises the question that no dispute likely to cause a breach of the peace, exists or has existed and produces evidence to support his contention, the Magistrate is bound to decide the question and to record his decision and the reasons therefor. The same question arose in Raja Ram's case and S. D. Singh, J. observed :

"......After the opposite parties are served they are entitled to urge before the SDM that there is no apprehension of breach of the peace; and if and when such an allegation is made, it is incumbent upon the SDM to make an enquiry in respect of that allegation. Provision for this enquiry is made sub. S. (5) of S. 145 CrPC, which provides that nothing in this section shall preclude any party from showing that no such apprehension of breach of the peace exists or has existed. In such a case the SDM is required to cancel his earlier order and all the further proceedings are to be stayed.

The SDM mentions in his judgment that the second party, namely, the opposite parties in this case who are applicants in the revision, d