In proceedings under Section 145, Criminal Procedure Code, the Magistrate is not required to record a finding of breach of peace at every stage. Once it is proved that there is no likelihood of breach of peace, the Magistrate can drop the proceedings under Section 145(5), Criminal Procedure Code, without holding a final inquiry under Section 145(6), Criminal Procedure Code.

A.S. Tripathi, J.

1. This petition has been presented under Section 482, Criminal Procedure Code against the order dated 9th of April, 1991, passed by IIIrd Additional Sessions Judge of Vidisha in Criminal Revision No. 109/90, confirming the order of the Sub-Divisional Magistrate, Kurwai dated 16th of Nov. 1990 dropping the proceedings under Section 145, Criminal Procedure Code.

2. Facts as admitted on record are that petitioner is a mortgagee in respect of certain land from respondent No. 1 Bahadur Singh. Bahadur Singh had executed a simple mortgage-deed in favour of the petitioner on 22-1-1986 against certain money borrowed by respondent No. 1. Petitioner was said to have been put in possession over the disputed land. An application was moved under Section 145, Criminal Procedure Code and the Sub-Divisional Magistrate recording a preliminary finding that there was a likelihood of breach of peace attached the said property. Further inquiry was held and it was found by the learned Magistrate that the original mortgagor Bahadur Singh was only a co-sharer in the property and shares of other two co-sharers were also there and the possession was joint.

3. Claim of the petitioner that he was put in possession by mortgagor under a simple mortgage-deed was also examined and it was found that even if the possession of the petitioner was taken to have been in pursuance of the mortgage-deed, it was and could be only in respect of the share of the original mortgagor Bahadur Singh who was only a co-sharer in that property. Bahadur Singh could not deliver possession to the petitioner or the entire land beyond his share. Since shares were not defined as held by the learned Magistrate and there was joint possession of the co-sharers, possession of the petitioner, if any, under the mortgage-deed will be deemed to be joint possession along with other two co-sharers and the petitioner had in any way stepped into the shoes of the mortgagor in so far as taking of possession in pursuance of the mortgage-deed was concerned. Since original mortgagor was only a co-sharer, possession of the petitioner would be only to the extent of the share of the mortgagor. The other two co-sharers who had not mortgaged the property will also be deemed to be in possession along with the petitioner and in that view of the matter, possession of the petitioner as co-sharer in respect of the mortgage-deed could not be said to be exclusive on the entire land.

4. The learned Magistrate while making enquiry at the stage of Section 145(5), Criminal Procedure Code found that since possession was joint and at the time when the inquiry was made the land was lying vacant and nobody was in possession, he recorded a finding that there is no likelihood of any breach of peace and with that finding proceedings under Section 145, Criminal Procedure Code were dropped and the property was released from attachment.

5. Learned Counsel for the petitioner assailed this order on the ground that the learned Magistrate was bound to record a finding under Section 145(6), Criminal Procedure Code, once the property was attached and inquiry was initiated.

6. It is true that once the Magistrate finds that there is likelihood of breach of peace, he should inquire regarding actual possession of the parties concerned on the date of preliminary order or two months prior to that. Only after making inquiry and recording finding, final order could be passed under sub-section (6) of Section 145, Criminal Procedure Code.

7. According to the learned counsel for the petitioner, since the learned Magistrate did not hold any inquiry and jumped over the conclusion that there is no likelihood of any breach of peace, it was against the provisions of Section 145, Criminal Procedure Code and particularly the spirit of Section 145(6), Criminal Procedure Code.

8. In so far as this contention is concerned, existence of breach of peace is not necessarily to be ascertained at every stage of the proceedings under Section 14