ORDER
G. Mehrotra, C.J.
1. This is a revision against the order of the Magistrate, Nowgong dated the 7th November 1960. The fact, leading up to this order are that the present petitioner filed an application under Section 145, Criminal Procedure Cods on the 20th October 1960 alleging that the petitioner was entitled to possession but his possession has been disturbed by the second party Abdul Matlib and that there was likelihood Of the breach of the peace. The Magistrate alter examining the internals placed before him was satisfied that there was a likelihood of the breach of peace over the disputed land. He accordingly passed a preliminary order and further directed the attachment of the land and the standing crops. Notices were issued to the parties to show their title to the land or the right to remain in possession. The notices called upon the parties to file their respective evidence on the 28th November 1960.
In the meantime it appears that the second party who are impleaded as opposite parties in the present petition, filed an affidavit challenging the facts alleged by the present petitioner and contending that there was no existence of the likelihood of the breach of peace and any dispute between the parties. The Magistrate on the 2nd November 1960 perused the affidavit tiled by the second party and on the 7th November 1960 passed the impugned order. He has come to the conclusion that the petitioner has by making the petition evaded the order of the Magistrate passed in another proceeding started by him wherein it was observed by the Magistrate that the matter was of a civil nature and the complaint filed by the petitioner was rejected. On that finding he came to the conclusion that the second party hag succeeded in showing that there is no such dispute as is likely to cause a breach of the peace. He consequently cancelled the order and directed that the possession of the property be handed back to the second party ass it was attached from his possession. This order is impugned by the present petition under Section 439, Criminal Procedure Code.
2. It is contended by Mr. Lahiri for the petitioner that the earlier order passed by the Magistrate rejecting the complaint of the present petitioner on the basis of which the present order has been passed by the Magistrate, has been set aside by this Court in revision. The order of this Court has been referred to me. The order was passed by this Court in Samjid Ali v. Abdul Rashid Cri. Revn. No. 170 of 1960, D/- 10.2.1961 (All). This Court held that the order of the Magistrate discharging the accused is hopelessly wrong and without jurisdiction. The order has been set aside and the matter has been sent back to the Magistrate for trial of the complainant according to law.
The entire basis of the Magistrate’s order in the present case therefore has disappeared as it has been held by this Court that the observation. of the Magistrate that the case was of a civil nature was erroneous. In that state of affairs, it cannot be said that the Magistrate was right in coming to the conclusion that the second party has succeeded in showing that there was no likelihood of the breach of peace. The Magistrate had asked the parties to attend court on the 28th November 1960 and to make their claims with regard to the possession of the disputed property. Before that date however, the opposite party filed an affidavit and on the perusal of that affidavit the Magistrate came to the conclusion that the opposite party has succeeded in showing that no likelihood of the breach of peace is there and he consequently dropped the proceedings.
3. Mr. Phoakan who appears for the other side has conceded that if the proceedings were dropped by the Magistrate he became functus officir and had no power to pass an order of delivery of possession to the opposite party. But he contends that the order by which he dropped the proceedings is legal and this Court canonic substitute its own decision as regards the existence or non-existence of the likelihood of the breach of peace. On the findings arrived at by the Magistrate he was entitled to drop the proceedings at, any stage under Section 145(5), Criminal Procedure Code. His contention is that on the finding that there was no likelihood of the breach of the peace the Magistrate was bound to cancel the previous order and thus the order is legal and cannot be quashed by this Court. Reliance is placed on the case of ‘Narasayya v. Chiguluri Venkiah AIR 1925 Mad 1252. In this case the Magistrate on being satisfied that there was no likelihood of the breach of peace dropped the proceedings and thereafter dealt with the property. A revision was filed against that order and it was contended that the Magistrate had no jurisdiction to drop the proceedings after he had issued notice to the parties to show their possession without deciding die question of possession. He has particularly referred to the following observation at page 1253 of the report:
If a Magistrate either refuses to make an order under Sub-section (1) of Section 145, Criminal Procedure Code, or, having made such an order subsequently cancels it on the ground that a dispute does not exist likely to cause a breach of the peace, no private person has any status to contest the propriety of his refusal to make an enquiry into the question of possession. It must be borne in mind that proceedings under Section 145 are not taken in the interests of private parties but for the preservation of the public peace, and if the Magistrate is satisfied that the likelihood of the breach of the peace either did not exist or that it has ceased to exist, it is the proper duty of the Magistrate to drop proceedings under Section 145…. It is the Magistrate’s duty to be satisfied that there is no breach of the peace in his district. If he is satisfied it is not for a private party to object. Clause (5) of Section 145 provides for a special case where as the Magistrate is proceeding with the trial of the question of possession, the parties to the proceedings or even other persons who are interested are given the right to show that no dispute likely to cause a breach of the peace exists or has existed. The existence of this clause does not take away the power of the Magistrate himself to drop proceedings if he is satisfied that there is no further likelihood of the breach of the peace.
These observation, show that the existence of Section 145(5) does not take away the power of the Magistrate to, drop the proceeding if he is satisfied that there is no likelihood of the breach of the peace. The foundation for taking action under Section 145, Criminal Procedure Code is the existence of a likelihood of the breach of the peace and if at any stage of the proceedings file Magistrate is satisfied that, there is no likelihood of the breach of the peace, he has ample powers to drop the proceedings under Section 145. But when he has started the proceedings and has issued notice to the parties to show their claim with regard to the possession and one of the parties has tried to show to the court under Section 145(5) that there is no likelihood of the breach of the peace, the Magistrate has got to apply his mind to the contention of the opposite party and examine it in the presence of both the parties. As has been pointed out by the Madras High Court, under Section 145(5) a public right has been given when the proceedings are going. on, to any of the parties to show that there is no likelihood of the breach of the peace.
In the Madras case no action was taken under Section 145(5) but the Magistrate himself suo motu came to the conclusion that there was no existence of a breach of the peace. In the present case on the affidavit filed by the opposite party the Magistrate examined the matter and came to the conclusion that the opposite party has succeeded in showing that there is no likelihood of the breach of the peace. In these circumstances’ it is open to the petitioner to point out to this Court that the order was passed behind his back and further to show that in view of the subsequent order of this Court in revision the very foundation for making the order by the Magistrate has collapsed. In these circumstances I allow this revision, and set, aside the order of the Magistrate. The ease will go back to the Magistrate and if in the circumstances of the case and having regard to the subsequent order passed by this Court the Magistrate is still of opinion that there is no likelihood of the breach of the peace, he can pass a proper order; under Section 145(5), Criminal Procedure Code.