RAJPATI Vs. BAGHAN

JUDGEMENT

(1.) This appeal by special leave involves a short point of law. Proceeding under S. 145 was started by the Magistrate against the respondents on the basis of a police report. After passing a preliminary order on the 29th July, 1976 ( wherein the Magistrate had recorded reasons for his being satisfied that a breach of the peace existed), the Magistrate called upon the parties to file their written statements and then after a full enquiry as provided by S. 145 the Magistrate passed the final order on 17th July, 1978 declaring the appellant to be in possession of the land in dispute. Against this order, the respondents moved the High Court under S. 482 Cr. P. C. for quashing the order of the Magistrate. The High Court found that as there was no clear finding by the Magistrate in the final order that there was an apprehension of breach of the peace, therefore, the final order was bad and the High Court accordingly allowed the petition and remitted the case to the Magistrate.

(2.) We have heard counsel for the parties and in our opinion the High Court erred in holding that the final order of the Magistrate was vitiated in absence of a finding that breach of the peace existed at the time the order was passed. It is not disputed that in the preliminary order there was a clear finding by the Magistrate that apprehension of breach of the peace did exist which was sufficient to give jurisdiction to the Magistrate to initiate the proceeding. When the parties filed their written statements, they did not state that no dispute between the parties existed but whereas one party said that there was no apprehension of breach from their side the other side took the stand that there was an apprehension of breach of the peace.

(3.) Thus the stand taken by the two parties was contradictory hence it must be taken for granted that the apprehension of breach of peace continued to exist and it was not a case where it could be said that no dispute existed, as contemplated under S. 145 (5) Cr. P. C.