JUDGMENT Sen, J. - This motion is against an order passed by Mr. A.R. Bose, Police Magistrate, Alipore. The facts leading to this motion briefly are as follows: An application was filed by Mr. B.N. Datta-Ray, barrister-at-law, before Mr. M.B. Ray, Police Magistrate, Alipore, a predecessor of the present Magistrate, praying that proceedings be drawn up u/s 144 of the Code of Criminal Procedure. Mr. Datta-Ray claimed that a certain plot of land in Palm Avenue, Park Circus, belonged to him and that the opposite party Abdul Wahed was going upon, the land without his authority and erecting structures thereon. He prayed that Abdul Wahed should be restrained from doing these acts and stated in his petition that there was a "great "apprehension of a serious breach of the peace." The learned Magistrate, after reading the application and hearing the advocate appearing on behalf of Mr. Datta-Ray, passed an order restraining the opposite party Abdul Wahed from entering upon the land and from proceeding with any construction thereon and directed that a notice of this order be served upon Abdul Wahed and that a copy of it be sent to the officer-in-charge of Balliganj police-station asking him to see that no breach of the peace takes place. In the notice served upon Abdul Waned there is a statement that there is an apprehension of a serious and imminent breach of the public peace. This is one of the grounds stated in the notice for its issue. Thereafter,-on December 23, 1946, Mr. Datta-Ray made another application before the learned Magistrate stating that the opposite party had disobeyed the notice and asking the learned Magistrate to direct photographs ,to be taken of the land to show the position of things thereon and he also asked the learned Magistrate to institute proceedings u/s 188 of the Indian Penal Code against Abdul Wahed for disobeying the order passed u/s 144 of the Code of Criminal Procedure. Upon this, the learned Magistrate directed the police to take photographs of the place. Then Abdul Wahed showed cause and the learned Magistrate fixed the date for both parties to produce their documents. Upon this, the learned Magistrate directed the police to take photographs of the place. Then Abdul Wahed showed cause and the learned Magistrate fixed the date for both parties to produce their documents. As regards the disobedience of the order passed u/s 144 of the Code of Criminal Procedure, the police report was briefly to the effect that Abdul Wahed had, after the receipt of the notice, gone on the land and made some construction thereon and that Abdul Wahed stated that he had done so bona fide under orders of Government, but no orders of Government could be produced. The matter was then taken up by another Police Magistrate, Mr. A.R. Bose, the successor of Mr. M.B. Ray. He heard both the parties and went through the documents. In showing cause. Abdul Wahed claimed that the land belonged to him and that he was in possession. When this claim to possession was made by Abdul Wahed, the first party, Mr. Datta-Ray, prayed to the Magistrate that, as there was a conflicting claim regarding possession of the land, proceedings u/s 144 of the Code of Criminal Procedure were not appropriate and that proceedings u/s 145 of the said Code should be drawn up. The learned Magistrate, on February 7, 1947, passed his orders and he refused to draw up proceedings u/s 145 of the Code of Criminal Procedure, on the ground that there was no apprehension of a breach of the peace and he directed the parties to go to the civil Courts. Against this order, the first party moved the Sessions Judge, who rejected the application and thereafter the first party has come to this Court. 2. The argument on behalf of the Petitioner is that there was absolutely no foundation for the learned Magistrate's finding that there was no apprehension of a breach of the peace. It was argued by Mr. Sircar, appearing for the Petitioner, that the petition of Mr. Datta-Ray disclosed that there was an apprehension of a breach of the peace. He pointed out further that the learned-Magistrate, who entertained the petition, accepted the statement and issued notice on the opposite party under the provisions of Section 144 of the Code of Criminal Procedure, stating that there was an apprehension of a serious breach of the peace. Mr. Datta-Ray disclosed that there was an apprehension of a breach of the peace. He pointed out further that the learned-Magistrate, who entertained the petition, accepted the statement and issued notice on the opposite party under the provisions of Section 144 of the Code of Criminal Procedure, stating that there was an apprehension of a serious breach of the peace. Mr. Sircar also points out that the land was situated in an area which maybe described as a "disturbed" area and that this Court should take judicial notice of the fact that rioting with violence was prevalent in Calcutta and in this area at the time. The learned Magistrate in his order seems to rely upon the fact that the police report states that the matter was of a civil nature and says nothing about the imminence of a breach of the peace. As against this Mr. Sircar points out that the police were nowhere asked to report on this point. They were merely told to report on the question whether Abdul Wahed had disobeyed the order passed u/s 144 of the Code of Criminal Procedure and the police reported that he had. The question as to whether a breach of the peace was imminent or not was not a matter on which the police were asked to report. I find that this is quite correct. At no stage did the learned Magistrate ask the police to report on the question whether there was a likelihood of a breach of the peace. 3. The position therefore comes to this. On the one hand, there is an allegation made by Mr. Datta-Ray, barrister-at-law, that a breach of the peace is imminent and that a dispute exists regarding possession of this property. Further, there is a notice by the Magistrate who first heard the application, in which the Magistrate accepted that position. There is also an order of the Magistrate asking the police to see that no breach of the peace took place. I do not suggest that these materials are sufficient to establish that there is a likelihood of a breach of the peace. That is a matter for the Magistrate to decide upon proper materials. But I must say that in this case the learned Magistrate in saying that there is no apprehension of a breach of the peace has given no grounds for this conclusion. That is a matter for the Magistrate to decide upon proper materials. But I must say that in this case the learned Magistrate in saying that there is no apprehension of a breach of the peace has given no grounds for this conclusion. He has not stated that he disbelieves the statements made by Mr. Datta-Ray and there are no materials disclosed contradicting the statements of Mr. Datta-Ray. In showing cause, Abdul Wahed did not deny the allegation that there was a likelihood of a breach of the peace. In these circumstances, I think that the learned Magistrate was wrong in refusing to draw up proceedings u/s 145 of the Code of Criminal Procedure. 4. When a petition is filed before a Magistrate by a person, who prima facie is a person of respectability and position, making allegations that there is a likelihood of a breach of the peace, the learned Magistrate has to make an enquiry and he should satisfy himself on this question before deciding whether to proceed in accordance with the provisions of Section 145 of the Code of Criminal Procedure or not. Here the learned Magistrate has done no such thing and therefore his order refusing to draw up proceedings u/s 145 of the Code of Criminal Procedure cannot be upheld. 5. I wish it to he clearly understood that I am not expressing any opinion on the question whether the dispute between the parties is likely to cause a breach of the peace. That is a matter for the Magistrate to decide upon proper materials. All I say is that the learned Magistrate has not considered this matter properly. I, therefore, set aside the order passed refusing to draw up proceedings u/s 145 of the Code of Criminal Procedure and direct that the question as to whether proceedings should be drawn up u/s 145 of the Code of Criminal Procedure or not should be reconsidered in accordance with law. The learned Magistrate considering this matter will decide either upon a police report or upon such other materials as he thinks proper whether the dispute between the parties is likely to cause a breach of the peace. If he is of opinion that there is a likelihood of a breach of the peace, he will draw up proceedings u/s 145 of the Code of Criminal Procedure and thereafter proceed according to law. If he is of opinion that there is a likelihood of a breach of the peace, he will draw up proceedings u/s 145 of the Code of Criminal Procedure and thereafter proceed according to law. If he is of opinion that there is no likelihood of the dispute leading to a breach of the peace he will reject the application. The matter shall be heard by such other Magistrate as may be appointed in this behalf by the learned District Magistrate.