MATUA HUKUMSINGH Vs. SIPAHILAL KHUBI

JUDGEMENT

(1.) THE main point urged in this revision is that the trial Court without holding that there exists a dispute which is likely to give rise to breach of the peace has taken proceeding under Section 145 of Code of Criminal Procedure code and that the finding of the Court with regard to the possession of the complainant is also erroneous.

(2.) THE short history of this case is that proceedings under Section 145 of the Code of Criminal Procedure code were started as far back as October 1956, and at one stage, a revision was filed before the High Court against an interlocutory order of the trial Court dated 6 -11 -1956. In that order the trial Court without enquiring into the matter entrusted the possession to the complainant and threatened the opposite party with proceedings under Section 107 of the Code of Criminal Procedure code.

(3.) ON a careful perusal of the record, I find that the learned Magistrate has made two mistakes.First, the Magistrate in order to assume jurisdiction under Section 145 of the Code of Criminal Procedure code has to satisfy himself about the likelihood of a breach of the peace. The foundation of the jurisdiction of the Magistrate is an apprehension felt by him with regard to the breach of peace. This the learned Magistrate had omitted to do in his preliminary order dated 6 -11 -1956. That order was set aside in the previous revision and the attention of the Magistrate was pointedly drawn towards this defect and he was directed to proceed according to law. But it seems that the Magistrate has again failed to record his satisfaction according to Clause 1 of Section 145, Code of Criminal Procedure code for reasons best known to him. It has been argued before me vehemently that the learned Magistrate has deliberately acted in defiance of the order of the High Court. I put it down to an oversight and do not consider his attitude as symptomatic of intellectual cussedness.