SARAT CHANDRA SAHU Vs. GURU DEHURY AND ORS.

JUDGEMENT

(1.) THIS revision is directed against an order of a Magistrate dropping a proceeding under Section 145 , Code of Criminal Procedure. Preliminary order in the case was passed on 3 -11 -1969 and properties in dispute were attached. 16 -2 -1970 was the date fixed for filing of written statement, documents and affidavits by the parties. 17 -2 -1970 was the date fixed for hearing arguments. On the 16th, the first party was absent. The second party appeared in Court and prayed for time which however was rejected. On that very day, the learned Magistrate passed an order dropping the proceedings. It is the correctness of this order that is challenged in this revision.

(2.) AT the time of hearing of this application the opposite parties are absent. It is contended on behalf of the Petitioner that once a magistrate has passed a preliminary order and attached properties, it shows he was prima facie satisfied that there exists dispute and that there is reasonable apprehension of breach of peace. That being so, the order cannot be vacated and the proceedings dropped merely because parties are absent, because, it is argued, there was no material before the Magistrate when the subsequent order was passed that the apprehension of breach of peace which was the foundation for the original order, had ceased. The only course open to the Magistrate in such circumstances was to make a reference under Section 146, Code of Criminal Procedure. This objection appears to be based on authority. A learned single Judge of the Andhra Pradesh High Court in Sagarla Pitchamma and Ors. v. Lakshmi Narasamma and Anr. : A.I.R. 1959 A.P. 425, had held that the Code of Criminal Procedure provides for the dropping by the Court only when it could, on the appraisal of the situation, come to the conclusion that the dispute likely to cause breach of peace no longer exists and that therefore Courts cannot dismiss these proceedings merely for the default of the appearance of the parties. Section 146, Code of Criminal Procedure contemplates that a reference thereunder can be made if the Magistrate is unable to decide as to which of the parties was then in possession of the property. Such a situation is necessarily brought about where neither party appears before the Court, and consequently, the Court has 110 material before it to come to a conclusion one way or the other. In the circumstances stated above, the order passed by the learned Magistrate appears to be misconceived. The order passed by him is set aside and the case is remanded to him for disposal. If the learned Magistrate is of opinion that the apprehension of breach of peace still exists, he should continue the proceeding and dispose it of according to law.