1. This Rule is directed against an order dated 10-4-68 passed by Mr. S. Ahmad, Sub-Divisional Magistrate, Feni dropping a proceeding earlier drawn under section 145 (1), Cr. P. C.
2. The learned Magistrate has dropped the proceeding with the following observations :- "Under Articles 387 and 404 of section 145, Cr. P. C. In Mitres' Book, the intention of the section is not to disturb the party admittedly in possession and also the subject involves movable property.
3. Under the circumstances the proceedings under section 145, Cr. P. C. Is not maintainable.
4. Proceeding is dropped. Inform Receiver."
5. The first party petitioner filed an application before the learned Sub-Divisional Magistrate, Feni for drawing up a proceeding under section 145, Cr. P. C. Against the second party opposite-parties on the allegations that the second party men were disturbing the possession of the first party on the schedule lands and as a result there was a serious apprehension of breach of peace between them in respect of the said lands. The learned Sub-Divisional Magistrate on being satisfied from the petition of the first party that there was a chance of breach of peace over possession of the disputed lands and the shop (including all the materials therein), drew up a proceeding under section 145 (1), Cr. P. C. On 28-2-68 restraining the parties from entering into the lands described in the Schedule and directing them to submit written statements. The learned Magistrate also attached the disputed properties including the shop and appointed the Chairman of the local Union Council as its receiver.
6. After long adjournment of the case either for this or that reason, 11-4-68 was fixed for service return of the proceeding. At this stage, it appears, the learned Sub-Divisional Magistrate, took up the case on 10-4-68 and dropped the proceeding by an order as quoted above.
7. A proceeding once drawn up under subsection (1) of section 145, Cr. P.. C. Cannot be dropped unless the provisions of subsection (5) of the said section are complied with. A proceeding can be dropped or cancelled under subsection (5) of section 145. Cr. P. C. When the parties have compromised their dispute or the person initiating the proceeding has given up his claim o A possession or when the Magistrate is satisfied that the apprehension of breach of peace which was the sine qua non for drawing up the proceeding has caused to exist. A Magistrate can drop a proceeding only on satisfaction as to non-existence of the dispute likely to cause a breach of the peace. He cannot drop a proceeding abruptly without a finding as to the non---existence of breach of peace. In this connection the cases reported in 16 D L R 246 (SC), 20 D L' R 200 and 49 .Mad. 232 may be referred to.
8. In the impugned order there is no indication that the learned Magistrate was satisfied as to non- existence of the apprehension of breach of the peace. A proceeding drawn under section 145 (1), Cr. P. C. Cannot be dropped on the grounds mentioned therein. The dropping of the proceeding is thus bad in law.
9. The initial order shows that an apprehension of breach of peace over possession of the disputed lands was very much present there. The dispute between- the parties existed concerning possession of the immovable properties described in the Schedule. There is nothing to show that the subject involved some movable properties only. In the circumstances, the learned Magistrate was not justified in dropping the proceeding..
10. The disposal of the matter by the learned Magistrate on 10-4-68 one day earlier than the date fixed for service return, was highly improper. The learned Sessions Judge has given a wrong approach to the matter and I cannot accept the soundness of the reasonings, recorded by him.
11. The impugned order having not been passed in accordance with law, as indicated above, I have no other alternative but to set aside the same and it is. Accordingly set aside. The Rule is thus made absolute.
12. The learned Magistrate is directed to proceed with the case in accordance with law from the stage at which it was dropped.