NANDAN SINGH Vs. THAKUR PRASAD SINGH

JUDGEMENT

(1.) This is an application in revision by the petitioner who was the first party in the court below against the final order dated 30-4-1975 passed in a proceeding under Section 147 of the Code of Criminal Procedure, 1898, by the Executive Magistrate, Gopalganj, dropping the proceeding pending enquiry before him.

(2.) Learned Counsel for the petitioner has submitted that the impugned order of the learned Magistrate cannot be sustained in view of the fact that the same should have been passed by a Magistrate of the first class and the learned Magistrate being Executive Magistrate and not a Magistrate of the first class had no jurisdiction to pass the impugned order in the proceeding which was pending in the court below before the new Criminal Procedure Code came into operation. Reliance has been placed upon Section 484 (2) (a) of the Code of Criminal Procedure, 1973, which reads thus:

(3.) The other point urged on behalf of the petitioner was that the learned Magistrate has relied on the decision of a case . But that was a case in which there had been a final adjudication by a civil court whereas in the present case the matter is not yet adjudicated but only pending and so the proceeding under Section 147 of the Code on that account should not have been dropped. In my opinion, only because a suit is pending in the civil court, the Magistrate should not have dropped the proceeding unless he was satisfied that there was no apprehension of breach of the peace after filing of the civil suit. The provisions of Sections 144, 145 and 147 are meant to prevent the contesting parties from committing breach of the peace if there be an apprehension of any breach of peace at their instance. In my opinion, therefore, the learned Magistrate before dropping the proceeding should have taken into account not only the fact that a title suit has been filed but also the fact regarding the existence of apprehension of breach of the peace as a result of filing of the title suit and if he was satisfied that there was no apprehension of breach of peace, then certainly he should not have proceeded with the proceeding under Section 147 of the Code, However, if in spite of the title suit there was likelihood of breach of the peace between the parties, in that case the proceeding should not have been dropped.