JUDGMENT

T. S. Misra, J. - This revision arises out of proceedings under Section 145, Criminal Procedure Code. Shiam Lal filed an application under Section 145, Cr.P.C. alleging that one Dharmu of the village in question had died heirless hence the Gaon Samaj of the village had come into possession of the house in which Dharmu lived. It was also alleged that as Dharmu had remained ill for about a year before his death the said house remained without re- pairs and became in a ruined condition. Shiam Lal further alleged that on 23rd December, 1969 the present applicants made a forcible entry into the house and started digging foundations. When Shiam Lal resisted the said action of the present applicants they threatened him with dire consequences and thus raised an apprehension of breach of peace. A report from the police was obtained on 4th January, 1970. The learned Magistrate passed a preliminary order on 9th January, 1970. Written statements and affidavits in support of the contentions made there- in were filed on behalf of the parties. The present applicants denied the contentions of Shiam Lal.

2. The learned Magistrate having found that the affidavit filled on behalf of the present applicants were not reliable inasmuch as the deponents were either interested with the present applicants or annoyed with the Gaon Samaj inasmuch as Gaon Samaj had initiated litigation against Rameshwar Dayal and another on whose affidavits the present applicants had placed reliance. On behalf of the Gaon Samaj affidavits of Shiam Lal, Sita Ram, Nokhey Lal and Mool Chand were filed. These persons were residents of the vicinity and the learned Magistrate placed reliance on those affidavits. On the appreciation of the facts placed before the learned Magistrate be held that the Gaon Samaj was in possession of the land in dispute and, therefore, A-45 released it in its favour. Against the said order a revision was preferred by the present applicants before the Addi- tional District Magistrate (Judicial), Pilibhit. That revision was rejected. The learned Additional District Magistrate (Judicial) concurred with the findings recorded by the learned Magistrate. He also observed that the sale deed on which the present applicants had placed much reliance had not been proved in accordance with law. The applicants have now come up in revision to this Court.

3. It was urged on behalf of the applicants that there is no specific finding that the Gaon Samaj was in actual possession of the house in dispute on the date of the preliminary order and, therefore, the impugned order is bad in law. The learned Magistrate having carefully examined the affidavits filed on behalf of each party came to the conclusion that the Gaon Samaj was in possession of the disputed property. It was open to the learned Magistrate to find out as to who was in actual physical possession on the date of the preliminary order or two months prior thereto. If it appears to the Magistrate that any party has within two months next be- fore the date of the order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date. In the instant case the learned Magistrate, on the facts disclosed to him in the affidavits, found that the Gaon Samaj had been in possession of the disputed property after the death of Dharmu. This finding was, therefore, sufficient for a further order of release of the property in question in favour of the Gaon Samaj.

4. It was next urged that no finding with regard to breach of peace was recorded. It is not disputed that on the application moved on behalf of the Gaon Samaj and after the receipt of the police report the preliminary order was passed by the learned Magistrate on 9th January, 1970. This order was obviously passed under sub-section (i) of Section 145, Cr.P.C. The question whether on the materials before him the Magistrate should initiate proceedings or not is, in his discretion. The language of the