JUDGMENT : G.K. Misra, J. - On 11th June, 1966, the Magistrate passed the preliminary order u/s 145(1), Code of Criminal Procedure and fixed the case to 21st of July, 1966 for filing of written statements, documents and affidavits, if any. Parties appeared on that day and applied for time for filing written statements and documents. The case was adjourned to 26th of August, 1966 and 30th of September, 1966. On both these dates, both parties applied for time alleging that they had not procured documents to enable them to file their written statements. The case was fixed to 17-11-1966, when the Magistrate passed the following order: Proceeding dropped u/s 145(5), Criminal Procedure Code as no party filed any documents, affidavits etc. and no dispute appears. Against this order, the criminal revision has been filed. 2. The only question urged by Mr. Misra is that in the absence of a finding that a dispute likely to cause breach of peace ceased to exist, the learned Magistrate should not have dropped the 145 proceeding. This contention requires careful examination of the scope and ambit of Section 145, Criminal Procedure Code. The scheme of the section in short may be noticed. Under Sub-section (1) when the Magistrate is satisfied from a police reporter other information that a dispute likely to cause a breach of the peace exists concerning any land, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claim as respects the fact of actual possession of the subject of dispute. It is to be noted that at the stage when the preliminary order is drawn, parties are not before the Magistrate. Neither they have been called upon to substantiate their own cases for a finding that a dispute likely to cause breach of the peace exists. The Magistrate may set on the police report or any other information. Sub-section (4) lays down the materials which the Magistrate would take into consideration in coming to a decision as to which party was in possession on the date of the preliminary order. The preliminary order already passed may be cancelled under Sub-section (5). The Magistrate may set on the police report or any other information. Sub-section (4) lays down the materials which the Magistrate would take into consideration in coming to a decision as to which party was in possession on the date of the preliminary order. The preliminary order already passed may be cancelled under Sub-section (5). It runs thus: Nothing in this section shall preclude any party so required to attend, or any other person interested, from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his side order, and all further proceedings thereon shall be stayed, but, subject to such cancellation, the order of the Magistrate under Sub-section (1) shall be final. 3. There is no dispute amongst the learned Advocates that in exercise of his power under Sub-section (5) the learned Magistrate can cancel the preliminary order if either of the parties or any other parties interested can satisfy the Magistrate that there was no likelihood of breach of the peace regarding the subject matter of dispute. Sub-section (5) of Section 145, Code of Criminal Procedure is not exhaustive and the Magistrate has jurisdiction to so motu act in coming to a conclusion that the apprehension of breach of the peace no longer exists regarding the subject matter of dispute. Just as the Magistrate had started the proceeding either on the police report or other information, equally he can drop the proceeding on getting a police report or some other information upon which he is satisfied that there was no likelihood of breach of the peace. Thus far, there is no dispute. 4. The controversy centres round the question whether the Magistrate is to draw the inference that there was no further apprehension of breach of the peace regarding the subject matter of the dispute, where the parties appeared in response to a notice issued under Sub-section (1), but did not file their written statements, affidavits or documents. No simple answer can solve the aforesaid problem. There may be cases where the parties are negligent and do not take steps though their dispute continues and necessarily the apprehension of breach of the peace continues. In such cases, it cannot be said that such dispute has ceased to exist. There may be other cases where such inference can legitimately be drawn. There may be cases where the parties are negligent and do not take steps though their dispute continues and necessarily the apprehension of breach of the peace continues. In such cases, it cannot be said that such dispute has ceased to exist. There may be other cases where such inference can legitimately be drawn. The real test in all such cases is whether the only reasonable inference would be that the dispute has ceased to exist. One such case is to be found in Muhammad v. Gulzar AIR 1940 Sind. 51. The facts of that case were that the parties appeared before the Magistrate, took time from date to date saying that there was a talk of compromise and ultimately they absented from Court. Their Lordships held that the only legitimate inference was that dispute had ceased to exist and therefore there was no apprehension of breach of the peace. In exercise of his powers sou motu the Magistrate in such case was justified to drop the proceeding. On the other side of the line is to be found a case discussed in Sagarla Pitchamma and Others Vs. Lakshmi Narasamma and Another. The facts are not very clear from the judgment, but it seems, parties had appeared, filed their written statements, affidavits and documents but merely absented themselves at the time of hearing. The learned Single Judge in a thoroughly well-discussed judgment came to the conclusion that from the facts of that case the only legitimate inference that such dispute had ceased to exist could not be drawn. Thus the conclusion would vary according to the facts of each case and no hard and fast rule can be laid down. 5. The question for consideration in this case is whether the learned Magistrate arrived at the correct conclusion in saying that no such dispute existed. The order passed by the learned Magistrate is very cryptic and does not give any reason and the materials on record do not justify such a conclusion. Parties bad appeared on previous dates i.e. on 21st July 1966, 26th August, 1966 and 30th September, 1966. On all these dates, they applied for time alleging that they were not ready with their documents so as to file written statements and affidavits. Parties bad appeared on previous dates i.e. on 21st July 1966, 26th August, 1966 and 30th September, 1966. On all these dates, they applied for time alleging that they were not ready with their documents so as to file written statements and affidavits. Whether that assertion was true or false is not within the scope of this enquiry but one fact is clear that from their conduct it cannot be said that they did not want to contest the proceeding. Rather the reasonable inference to be drawn is that such dispute had not ceased. Doubtless, they were negligent but from negligence itself, the fact of non-existence of the dispute cannot necessarily be inferred. The negligence is associated with the further fact that on each occasion they said that they wanted time to file written statements and documents with which they were not ready indicating their desire to fight. I am, therefore, satisfied that on the materials on record of this case, it cannot be said that the dispute in respect of which the preliminary order was passed had ceased to exist. 6. The next question for consideration is whether 145, Code of Criminal Procedure proceeding will continue or in view of the absence of the parties, the Magistrate should have referred the matter to Civil Court u/s 146, Criminal Procedure Code. Section 146(1) should be read with Section 145(6). If the Magistrate is of opinion that one of the parties was in possession on the date of the preliminary order he would pass an order in his favour under Sub-section (6). If the Magistrate cannot, come to a conclusion as to which party was in possession, a reference u/s 146, Code of Criminal Procedure would be made. Here, there are no materials before the Magistrate. Even the written statements had not been filed. So the question of making a reference in such cases does not arise. The observations in Jogeshwar Mahton and Others Vs. Uchit Mahton and Others were correct in the circumstances of that case where written statement and some of the documents had been filed. The matter may also be examined from another point of view, there the parties completely abstained from taking any steps in respect of the direction issued u/s 145(1), Criminal Procedure Code, a reference u/s 146 Code of Criminal Procedure would encourage inaction and negligence on the part of the parties. The matter may also be examined from another point of view, there the parties completely abstained from taking any steps in respect of the direction issued u/s 145(1), Criminal Procedure Code, a reference u/s 146 Code of Criminal Procedure would encourage inaction and negligence on the part of the parties. A decision of a civil Court is always preferred to a decision by a Criminal Court particularly when there is no full-fledged separation of judiciary from the executive and all 145 proceedings are tried by the Executive Magistrates. Proceeding ding u/s 145 will be utilised for the purpose of reference under Sub-section (1) of Section 146. This is an additional reason why the view urged by Mr. Bath that where, written statements, documents and affidavits have not been filed, the reference should not be made is acceptable. 7. In view of the aforesaid discussion, the only legitimate course now open is to continue the 145, Code of Criminal Procedure proceeding. 8. In the result, the order of the learned Magistrate u/s 145(5), Code of Criminal Procedure is set aside and he is directed to proceed with the case in accordance with law and the observations made above. The criminal revision is allowed. I must place on record my appreciation of the arduous labour put forth in this case by the learned Advocates for both the parties. Final Result : Allowed