BASDEO Vs. BADRI NARAIN

JUDGEMENT

(1.) This a reference by the learned Sessions Judge of Allahabad. The facts which have given rise to the reference are these: On 21-6-1948, Badri Narain presented an application to the Court of the Sub-Divisional Magistrate of Handia, in the district of Allahabad, for initiation of proceedings, under Section 145, Criminal P.C. It was alleged in the application that there was a dispute relating to certain fields; and there was a likelihood of a breach of the peace. On this application the Magistrate passed the following order, on the same date :

(2.) Against the above order of the Magistrate, Basdeo filed a revision in the Court of the Sessions Judge of Allahabad, challenging the legality of the order. The learned Sessions Judge was of opinion that there was no provision in the Criminal P. C. for the withdrawal of the proceedings initiated under Section 145, Criminal P. C. He observed that once the Magistrate was satisfied that there was a dispute likely to cause a breach of the peace and the written statements had been filed, he was bound to proceed with the inquiry as to possession under Section 145 (4), Criminal P. C. He further observed that, apart from its legality the order was likely to give rise to fresh trouble since it had not been specified in whose favour the attached property was to be released. Accordingly, he has made this reference recommending that the order allowing the withdrawal of the application passed by the Magistrate be set aside and he may be directed to give a decision according to law.

(3.) The order of the learned Sessions Judge is based on the assumption (1) that the Magistrate was satisfied that a dispute likely to cause a breach of the peace existed, (2) that the Magistrate had made a preliminary order under Section 145 (1), Criminal P. C., and (3) that the attachment was valid. These assumptions are not justified. The first order which the Magistrate made on the application of Badri Narain when it was presented to him, on 21-6-1948, goes to show that on the materials placed before him, he was not satisfied about the existence of any dispute likely to cause a breach of the peace. He called for a police report and said in the order "if there is an apprehension of breach of peace" the Sub-Inspector might attach the property. After the receipt of the police report, the Magistrate never had occasion to apply his mind to it and to consider whether it contained any materials on which he could be satisfied that there was any dispute likely to cause a breach of the peace. He merely directed the parties to be summoned for a specified date. Learned counsel for Basdeo has contended that the order summoning the parties could not have been passed by the Magistrate unless he was satisfied about the existence of any dispute likely to cause a breach of the peace; but from the nature of the order which was passed by the Magistrate it is not possible to draw any such inference. He nowhere stated the grounds of his being so satisfied.