JUDGMENT
V. Kanhaiyaji, J.
1. This is a petition in revision filed on behalf of the first party in a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as ‘the Code’) against the order dated the 25th July, 1968, passed by Mr. R.D. Paswan, Magistrate 1st Class, Chaibassa.
2. What happened was this: The petitioner filed a petition on the 26th June, 1967, before the Subdivisional Officer, Chaibassa, alleging breach of peace-against the opposite party with respect to possession over plot No. 150 under khata No. 109 of mauza Gitiladhar within police station Manjhari, district Singhbhum. The learned Subdivisional Magistrate referred the matter to the police for enquiry. The police submitted report that a serious apprehension of the breach of the peace existed between the parties. The learned Magistrate being satisfied that a serious apprehension of the breach of the peace existed drew proceedings against both the parties under Section 144 of the Code. The proceedings were thereafter converted under Section 145 of the 7th October 1967 and the case was transferred for disposal to the court of a 1st class Magistrate at Chaibassa. The learned Magistrate on a consideration of the evidence of both the parties found that none of the parties was in possession of the disputed land and, therefore, he dropped the proceeding under Section 145 in absence of evidence.
3. It is obvious that the attention of the learned Magistrate, was not drawn to the new Sub-section (1) of Section 146 of the Code, which was substituted by Act 26 of 1955 (old Section 19). The present Sub-section (1) of Section 146 of the Code is in these words:
(i) If the Magistrate is of opinion that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession, of the subject of dispute, he may attach it, and draw up a statement of the facts of the case and forward the record of the proceeding to a Civil Court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the date of the order as explained in Sub-section (4) of Section 145; and he shall direct the parties to appear before the Civil Court on a date to be fixed by him.
It is manifest from the amended Sub-section (i) of Section 146 that if after the enquiry under Section 145 of the Code the Magistrate is of opinion that none of the parties was in actual possession of the subject of dispute at the date ;of the order passed in Sub-section (1) of Section 145 or is unable to decide which of the parties was in such possession in absence of evidence, as in this case, he may attach the land in dispute and refer the case to a competent Civil Court for decision on the question of possession and direct the parties to appear before that Court on a date fixed by him. Section 146 is a sort of corrollary of Section 145 and Section 146 may really be construed as part of Section 145 or as a complimentary. It follows, therefore, that if a Magistrate does not refer a case to the Civil Court in the circumstance covered by Sub-section (1) of Section 146 of the Code, it must be held illegal and be set aside.
4. Mr. Nripendra Roy, appearing for the petitioner, relied on a decision of Raj Kishore Prasad, J. in Abhoypada Banerjee v. Dhanesh . In that case it has been held that a Magistrate acts illegally if he drops a proceeding under Section 145(1) on the ground that the petitioner has not led evidence to prove that a dispute involving an apprehension of the breach of the peace existed or still continues. The real question before the Magistrate, after having started the said proceeding, is whether he is satisfied that the dispute did not, or has ceased to involve an apprehension of a breach of the peace, and then he could drop the proceeding under Section 145(5) of the Code. It has also been held that if the evidence in the shape of the affidavits adduced by the parties is equally balanced then it is manifest that the Magistrate is unable to decide as to which of the party was in possession of the subject of dispute on the date of the preliminary order made under Section 145(1), and therefore in such a case the proper order to pass is one under Section 146(1) and as such he has no jurisdiction to drop the proceeding under Section 145(5) of the Code.
5. For these reasons, it is plain that the order passed by the learned Magistrate is not in accordance with Sub-section (1) of Section 146 of the Code, and as such it must be set aside.
6. The result, therefore, is that the application is allowed, the order complained of is set aside and the case is sent back to the learned Magistrate for disposal in accordance with law in the light of this judgment.