SURESH NATH PANDEY Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) The applicant has come forward with a prayer that the order of attachment passed by the Magistrate be quashed. It is also prayed that the entire proceedings under Section 145, Criminal Procedure Code, be quashed.

(2.) Proceedings under Section 145, Criminal Procedure Code, were initiated much earlier. The Magistrate derivesT his jurisdiction from the preliminary order. He has to record his satisfaction concerning the apprehension of breach of peace centering round the dispute over possession of immovable property and once he bas recorded any suck satisfaction, his jurisdiction comes into play. Nothing is pointed out to canvass that the preliminary order as such was bad. What is being urged is that the attachment order is bad. Apart from that, it is crystal clear that there is a hot dispute between the parties 1969 concerning possession. The matter has been litigated upon in the revenue courts into the appellate and revisional level and even now a writ petition is pending. In the circumstances, such dispute exist. It is the subjective satisfaction of the Magistrate concerning apprehension of bleach of peace and I may not make more observations, because the question whether such apprehension continues will have to be later gone into by the Magistrate himself, and if make any observation concerning continued apprehension of breach of peace that may prejudice the applicant. It is a settled law that once the Magistrate has passed a preliminary order under Section 145, Criminal Procedure Code, he has to continue with the proceedings to its logical end. This was the view taken in the case of R A Bhutani v. Mismani1 and a similar view was also taken in Rajput v. Bachcha2. What has been held in the various Supreme Court pronouncements is that after passing a preliminary order the Magistrate must decide the matter of possession one way or the other under Section 145(4) Criminal Procedure Code, unless from the evidence before it the Magistrate comes to a Magistrate can drop proceedings under clear fiading on evidence that apprehension of 145 Cr. P. C.only when he proceeds under breach of peace has ceased to exist. It is Section 145 sub-section (4) and if at that stage thus obvious that the whole matter it to be he is satisfied of to that no apprehention (If looked into at the stage of Section 145(4), breach of peace exists he need not go into the Criminal Procedure Code. Obviously, it will question of possession be an abuse of the process if findings are given piecemeal. At the stage of Section 145(4) Criminal Procedure Code the Magistrate can well before entering into discussion concerning Possession on the material date, first consider in that Judgment whether apprehension of breach of peace continues, and If on evidence on record he then comes to a conclusion that such apprehension of breach of peace has ceased to exist, he will naturally conclude the proceedings without further entering into the question of possession and granting a declaration as contemplated under Section 145, Criminal Procedure Code. This is the only proper procedure.

(3.) It was urged that the applicant moved an application before the Magistrate supported by an affidavit that apprehension of breach of peace does not exist, so proceedings may be dropped, and it should have been considered then and there. I do not agree with such submissions. If this type of procedure is adapted, actually the provisions of Section 145(4), Criminal Procedure Code would be defeated. The scheme -of Section 145, Criminal Procedure Code, is that first a preliminary order is passed inviting written statements and evidence and then the matter is proceeded with under Section 145(4) Criminal Procedure Code, and, of course, if an the evidence at that stage the Magistrate comes to a conclusion that apprehension of breach of peace has ceased to exist, he can well drop the proceedings and not earlier. That stage has not reached. The stage will came whether the Magistrate takes the entire evidence under Section 145(4), Criminal Procedure Code regarding possession as well and be will then in that judgment record a -finding an this aspect also.