GAJPAT RAO Vs. LADLI KUNWAR

JUDGEMENT

(1.) THIS application in revision arises out of proceedings under section 145 CrPC. On 2-8-1978 a preliminary order was passed under Section 145 (1) CrPC calling upon tie parties to file their written statements in support of their respective claims to the disputed immovable property. While the proceedings were continuing, it appears that on 14th June, 1979, an application was filed by the applicants praying that the proceedings be dropped since there was no apprehension of breach of peace. The Magistrate called for a report from the police. After hearing both the parties he rejected this application on 5th July, 1979. It appears that the [inquiry thereafter continued under Section 145 (4) CrPC P. W. 5 has been examined. On 6th September, 1980 another application was filed by the applicant to the effect that the apprehension of breach of peace ceased to exist and that the proceedings be dropped. THIS application has been rejected by the impugned order, passed by the Magistrate on 9 th October, 1980. Hence this revision.

(2.) I have heard learned counsel for both the parties at considerable length and have also perused the impugned orders. Counsel for the applicant has argued that under the provisions of Section 145 (5) CrPC it was open to the applicants to allege at any stage during the continuance of the inquiry under Section 145 (4) CrPC that the apprehension of breach of peace has ceased to exist and on such allegations being made, it was mandatory for the court to allow the applicants an opportunity of showing the non-existence of an apprehension of breach of peace. He argues that the court below has acted illegally in the exercise of his jurisdiction in rejecting this application forthwith. On the other hand counsel for the opp. parties has submitted that the non-existence of the apprehension of breach of peace relates to the date on which a party appears in court in pursuance of the notice issued by the Magistrate after passing a preliminary order. His submission, in other words, is that if the party does not allege nonexistence of an apprehension of breach of peace in the written-statement, filed by him, then it is not open to him at any latter stage to take this stand and to pray for dropping of the proceedings. The opp. parties' counsel has also argued that there was no material or specific facts, alleged in the application dated 6th September, 80 filed by the applicant on the basis of which it can be said that the Magistrate should have given an opportunity to him to show that the apprehension of breach of peace ceased to exist.

(3.) I have carefully considered the arguments advanced by learned counsel for the parties and have also carefully perused the Supreme Court decision reported in (1981) S. C. page 18, (196&) Supreme Court page 1002, (1973) CrLJ, page 1091. These cases have been cited and discussed before several times. I do not consider it necessary to deal with them in detail. The principle of law laid down in these cases and others of trie Supreme Court and this court is very clear that the question of existence of an apprehension of breach of peace is a basic question. It is the foundation on which the jurisdiction of a Magistrate to proceed under Section 145 CrPC can be invoked. If there exists apprehension of breach of peace, the Magistrate can pass a preliminary order and proceed with the enquiry. If there is no apprehension of breach of peace, he can not proceed under Section 145 CrPC. There is nothing in Section 145 CrPC to restrict the stage at which an objection can be filed by a party to show that no apprehension of breach of peace exists. I do not agree; with the interpretation of the counsel for the opp. parties that such objections can be taken only by a party who is required to attend, at the time, when he (files a written statement. It is true that at the stage of filing written-statement, this objection can be taken and if the court is satisfied thereon it can cancel the order. But even at a subsequent stage and during the continuance of the proceedings under Section 145 CrPC it can still be urged that the apprehension has ceased to exist now and therefore, the proceedings should be dropped. To my mind, there is no time limit fixed; nor is there any stage set for the moving of such an application of non-cxi;ieace of apprehension of breach of peace, therefore, when su:h an application is moved, it is mandatory for the court to give the parties an opportunity of proving the truth of his allegation. The word 'showing' in Section 145 (5) CrPC has been interpreted by this court as giving an opportunity to the party to lead evidence to prove his allegations.