JUDGMENT

Bennett, J - This case has been referred by the learned Sessions Judge of Gonda in connexion with an order passed by a Magistrate in a case under Section 145, Criminal P.C. Proceedings under this Section were taken against Mt. Raquma and others on the complaint of Mt. Ghirrai supported by a police report that there was an apprehension of a breach of the peace. It is not contended that the Magistrate was not justified in taking proceedings and issuing a preliminary order under Sub-section (1) of Section 145. It appears that when the case was taken up on. the date fixed the complainant Mt. Ghirrai was absent and the Magistrate thereupon passed the following order:

Complainant absent. Complaint dismissed. Attached property to be returned to the person or persons from whose possession it was taken.

2. On the same date, namely 22nd February 1939, Mt. Ghirrai applied for restoration of the case and explained that her absence earlier in the day was not deliberate. The Magistrate accepted her explanation and restored the case, setting aside his previous order of dismissal. This order was passed on 10th May 1939. An application in revision was then filed by Mt. Raquma before the learned Sessions Judge. He pointed out that there was no provision in the Code of Criminal Procedure empowering a Magistrate to restore a complaint or other criminal proceedings dismissed for default. The plea taken before the Sessions Judge on behalf of Mt. Ghirrai apparently was that the Magistrate had inherent jurisdiction to rectify the mistake committed by him in making the order of 22nd February, and also that it was his duty to come to a conclusion as to which of the parties was in possession of the subject-matter of dispute. The learned Sessions Judge referred to Sub-section (4) of Section 145 and also to Section 146, but concluded that even if the order of 22nd February was one which the Magistrate should not have passed, he had no jurisdiction under any of the provisions of the Code of Criminal Procedure to set aside that order and revive the proceedings. Therefore in his opinion the order of 10th May 1939 cannot stand. I agree with the learned Sessions Judge that there is no provision in the Code of Criminal Procedure which would in terms justify the revival of the case, but it seems to be clear that there is equally no provision in the Code which would warrant the dismissal of the case on 22nd February. Once a Magistrate has found that there is an apprehension of a breach of the peace it is his duty to inquire into the possession of the parties and to pass orders accordingly either under Section 145 or under Section 146. It becomes unnecessary for him to pass such an order with regard to possession only on his being satisfied either that there is no longer any apprehension of a breach of the peace or that no dispute between the parties exists or has existed.

3. It is said on behalf of the opposite party that the Magistrate had no material before him on which to base a decision as to possession, since no evidence was adduced by the complainant. There is nothing however to show that the opposite party was not herself present on the date fixed and had not brought evidence, and in any case it was open to the Magistrate to procure evidence, if he thought it necessary, under Section 540. The mere fact that one of the parties was absent on the date fixed does not entitle a Magistrate to dismiss proceedings under Section 145 when there has been a definite finding that there is an apprehension of a breach of the peace. The learned Sessions Judge appears to have considered that the same procedure should be followed as in complaint cases but there are numerous authorities in support of a contrary view, and at most it seems to have been laid down that Courts should only follow the procedure prescribed for summons cases where it is convenient to do so. There is no provision in the Code which prescribes that the same procedure should be followed, and the