Mt. Bimla Devi v. Shobhanath Mahmarik & Nine — 1974 DIGILAW 150 (PAT)

Judgment Nagendra Prasad Singh, J. This application in revision by the members of the first party to a proceeding under section 145 of the Code of Criminal Procedure, 1898 (hereinafter referred to as the ‘Code’) is for quashing the final order passed in the said proceeding by a learned Magistrate of Godda on the 19th January, 1970, by which he has declared the members of the second party opposite party to be in possession of the lands in dispute. 2. The Assistant Sub-Inspector of Police, Poraiyahat in the district of Santhal Parganas, submitted a report, dated the 20th November, 1968, to the Sub-divisional Magistrate, Godda, for drawing up a proceeding under section 144 of the Code against the members of the first and the second parties, as there was dispute, between them in respect of five plots of Jamabandi No. 58 mauza Kanauli, police station Poraiyahat, details where of were given in the said report. On the basis of the said report, the Sub-divisional Magistrate passed an order on the 26th November, 1968, drawing up a proceeding under section 144 of the Code. The said order runs as follows: "A.S.I. of Police Poraiyahat, has submitted a report for action u/s 144 Cr. P.C. The report has duly been forwarded by the D.I. of Police Perused the report. I am satisfied that there is an apprehension of the breach of the peace. Draw up proceedings u/s 144 Cr. P.C. against the members of both the parties restraining them from going upon the disputed lands and directing them to appear and file show cause as to why the rule should not be made absolute against both or either of the parties. Put up on 6.12.68." 3. In pursuance of the said order, notices under section 144 of the Code were issued to both the parties under the signature of the Sub-divisional Magistrate, stating therein that it appeared from the report of the Assistant Sub-Inspector of Police, Poraiyahat police station, that there was an apprehension of a breach of the peace between the parties with regard to plot nos. 1068, 1110, 1125 and 1164, under Jamabandi No. 58, of mauza Amar Kanauli, P.S. Poraiyahat. 1068, 1110, 1125 and 1164, under Jamabandi No. 58, of mauza Amar Kanauli, P.S. Poraiyahat. They were, thereby, being restrained from going upon the disputed lands and were directed to appear in his Court to how cause on the 6th December, 1968, as to 'why the rule issued should not be made absolute against either of them. In due course, both parties appeared and showed cause. 4. The first party-petitioners, in their show cause, claimed that they were in possession over the entire lands of Jamabandi No. 58, including the disputed lands. They set out in detail their claim of possession, and allowed that the members of the second party-opposite party were desperate type of men and they had set up a false claim. It was further stated that the members of the second party had brutally assaulted one of the well wishers of the members of the first party, for which a case had also been lodged. A prayer was made on behalf of the members of the first party to make the rule absolute against the members of the second party and to rescind the same so far as the members of the first party were concerned. 5. In the show cause filed by the members of the second party, it was asserted that there was no likelihood of any breach of the peace from their side. They also set out in detail their claim of possession over the disputed lands saying that they were all along in actual cultivating possession of the entire lands within Jamabandi No. 58. They also alleged that the claim of the member' of the first party of being in actual physical possession of the lands of Jamabandi No. 58, including the disputed lands, was absolutely false. A prayer was made on their behalf also to discharge the rule against them and to make it absolute against the members of the first party. 6. The learned Magistrate heard arguments on behalf of both parties and by order, dated the 21st January, 1969, converted the proceeding under section 144 into one under section 145 of the Code and attached the subject of dispute during the pendency of the proceeding. 6. The learned Magistrate heard arguments on behalf of both parties and by order, dated the 21st January, 1969, converted the proceeding under section 144 into one under section 145 of the Code and attached the subject of dispute during the pendency of the proceeding. While doing so, he set out in detail the respective cases of the parties in respect of the disputed lands and passed the following orders: "The case of the 1st party is that they have been exercising possession over the entire disputed lands under jamabandi no. 58 recorded in the name of Nanka Khalda. Nanka Khalda had a daughter named Bhagjogni who had three daughters viz. Shahjadi, Debki and Bimlakali. Shahjadi died during the life time of Bhagjogni and Nanka. Nanka also died in the year 1942. After the death of Nanka there was a rent suit against the remaining two legal heirs viz. Debki and Bimla Kali. In that rent suit no. 1518 of 1944 Bhajo Kali and Gulo Kali had given in writing that they had no interest in the lands of Nanka Khalda. Debki and Bimla Kali paid the arrear rent. Since then the 1st party along with Debki and Bimla Kali carne in possession. The second party has based their claim on the basis of record-of-rights prepared at the time of Macpherson's settlement. According to the second party, Nanka Khalda died issueless. Nanka had kept Gulo and Katkahi Kali d/o Ranjit Khalda brother of Nanka. After the death of Nanka his two nieces Gulo and Kat kahi Kali came in possession over the disputed lands. These two girls executed 'kurfa' in favour of Sobhnath Mahamarik. The dispute between the parties is of civil nature. The question of possession cannot be decided in a summary proceeding u/s 144 Cr. P.C. The proceeding is accordingly converted into a proceeding u/s 145 Cr. P.C. Issue notice accordingly attaching the disputed plots. Parties to put in w/s, affidavits and file documents in support of their respective claims of actual physical possession To 27.2.69." 7. The question of possession cannot be decided in a summary proceeding u/s 144 Cr. P.C. The proceeding is accordingly converted into a proceeding u/s 145 Cr. P.C. Issue notice accordingly attaching the disputed plots. Parties to put in w/s, affidavits and file documents in support of their respective claims of actual physical possession To 27.2.69." 7. In pursuance of the said order, notices were issued to the parties under the signature of the Sub-divisional Magistrate in which it was stated: "Whereas it appears from the report of the A.S.I. Poraiyahat P.S. that a dispute is likely to induce a breach of peace between the parties with regard to plot No. 1068, 1110, 1125, 1155, 1164 under J.B. No. 58 of mauza Amra Kanauli P.S. Poraiyahat, within the local limits of my jurisdiction. I hereby order you both the parties not to go upon the lands in dispute or to create any breach of peace between themselves and the parties are further directed to file written statement, affidavits and document etc. if any in support of their respective claim by 11.8.69. The dispute lands are hereby attached u/s 145 Cr. P.C. pending decision of the present proceeding....." It appears that thereafter both parties filed their respective written statements, documents and affidavits, and, after hearing the parties, by order dated the 19th January 1970, the learned Magistrate declared the members of the second party to be in actual physical possession of the disputed lands and restrained the petitioners from interfering with their possession. It is against this order that the petitioners have filed the present revision application challenging the legality of the said order. 8. One of the grounds taken on behalf of petitioners is that the learned Magistrate, while converting the proceeding under section 144 into one under section 145 of the Code, has not passed an order in accordance with requirements of section 145 (1), inasmuch as the learned Magistrate has stated neither that he was satisfied that a dispute likely to cause a breach of the peace existed relating to the lands in question nor has he stated the grounds on the basis of which he was so satisfied. According to the petitioners, due to the noncompliance with the aforesaid provisions of section 145 (1), even the final order passed in the proceeding is vitiated and, as such, it has to be set aside by this Court. 9. According to the petitioners, due to the noncompliance with the aforesaid provisions of section 145 (1), even the final order passed in the proceeding is vitiated and, as such, it has to be set aside by this Court. 9. This revision application was initially placed before a learned Single Judge of this Court, who after hearing the parties, referred it to a Division Bench. As would appear from the order of reference, it was urged .on behalf of the petitioners that the Bench decision of this Court in Ramswaroop Singh v. Bisa Singh 1970 BLJR 1207=1970 PLJR 684 was contrary to the decision of the Supreme Court in R.H. Bhutalli v. Miss Mani J. Desai AIR 1968 SC 1444 and further that there was conflict between the two Bench decisions of this Court in Ramswaroop Singh (supra) and Jiut Dusadh v. Ashraj Hussain 1970 BLJR 776. 10. Mr. S.C. Mishra, learned Counsel appearing on behalf of the petitioners, has urged that the conditions precedent to the exercise of jurisdiction under sub-section (1) of section 145 of the Code are that the Magistrate must be satisfied, before initiating the proceeding under section 145, (i) that a dispute regarding an immovable property exists, and (ii) that such dispute is likely to cause a breach of the peace. According to the learned counsel, unless these two conditions are fulfilled any proceeding initiated by a Magistrate is without jurisdiction, and that there is a mandate of the legislature that the Magistrate, before assuming jurisdiction, must state in the preliminary order passed under section 145 (1) that from the materials on record or the information received by him he was satisfied that "a dispute likely to cause a breach of the peace exists concerning any land", and that he must “make an order in writing, stating the grounds of his being so satisfied." If the Magistrate either says nothing regarding his satisfaction in the order drawing up the proceeding, or he fails to state the grounds of his being so satisfied, the order drawing up the proceeding is contrary to the mandatory provisions of section 145 (1) and even the final order passed in the proceeding under sub-section (6) of section 145, declaring one party or the other to be in possession, will also be vitiated. Acc0rding to the learned counsel, these requirements are not to be adhered to only while initiating a proceeding under section 145, but also while converting a proceeding under section 144 into one under section 145 of the Code. According to the petitioners, the operation of an order under section 144 of the Code is not to remain in force for more than two months from the date of making thereof, meaning thereby from the date of the initial order, and, as such, there cannot be a question of converting that proceeding under section 144 into one under section 145; whenever a proceeding under section 144 is converted into one under section 145, it amounts to drawing up a fresh proceeding and the Magistrate is enjoined to pass the preliminary order in terms of subsection (1) of section 145 of the Code. 11. Section 145 (I) of the Code reads as under : “Whenever a District Magistrate, sub-divisional Magistrate or Magistrate of the first class is satisfied from a police-report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof within the local limits of his jurisdiction, 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 claims as respects the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce, by putting in affidavits, the evidence of such parsons, as they rely upon in support of such claims." There cannot be any doubt that the jurisdiction of a Magistrate to draw up a proceeding under section 145 of the Code rests on the aforesaid two conditions. This section, in unmistakable terms, requires that the Magistrate must be satisfied, before initiating a proceeding under section 145, that a dispute regarding an immovable property exists and that such dispute is likely to cause a breach of the peace. Unless the two conditions are fulfilled, any order passed by a Magistrate will be illegal and without jurisdiction. This section, in unmistakable terms, requires that the Magistrate must be satisfied, before initiating a proceeding under section 145, that a dispute regarding an immovable property exists and that such dispute is likely to cause a breach of the peace. Unless the two conditions are fulfilled, any order passed by a Magistrate will be illegal and without jurisdiction. This aspect of the matter has been settled long ago by several decisions of this Court as well as of the Supreme Court. In R.H. Bhutani V. Miss Mani J. Desai, it was observed: "8. The object of section 145, no doubt, is to prevent breach of peace and for that and to provide a speedy remedy by bringing the parties before the Court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court. The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under sub section (1) and thereafter to make an enquiry under subsection (4) and pass a final order under subs. (6)." 12. The moot question to be decided, however, is, as to whether any order passed under section 145(1), that is, .initiating a proceeding under section 145 of the Code, will be illegal and without jurisdiction' only because in the said order the Magistrate had not stated that he was satisfied that there was a likelihood of a breach of the peace concerning some land, or because he had not set out the grounds and materials on which he was so satisfied, and as to whether in such cases it is open to a court of revision, in exercise of its powers under sections 435 and 439 of the Code, to set aside the said order, holding it to be illegal and contrary to the provisions ,of section 145(1) of the Code. The other aspect of the matter is as to what would be the effect if a party to such proceeding did not question the legality of the order at the earliest stage and allowed the proceeding to go on, participated in the said proceeding by filing documents, affidavits etc. The other aspect of the matter is as to what would be the effect if a party to such proceeding did not question the legality of the order at the earliest stage and allowed the proceeding to go on, participated in the said proceeding by filing documents, affidavits etc. and after the order went against him, questioned the legality of the final order on the ground that the initial order under section 145(1) itself was bad and contrary to the requirements of that section. 13. The power of a Magistrate to draw up a proceeding under section 145 of the Code outright cannot be questioned if he is satisfied regarding an apprehension of a breach of the peace relating to land; but, instead of drawing up a proceeding under section 145, he may draw up a proceeding under section 144 Or section 107 of the Code and at any later stage he may convert the said proceeding into one under section 145. It is true that there is no specific provision in the Code for converting a proceeding either under section 144 or under section 107 into one under section 145, and it has to be held that, for all practical purposes, when it is stated that any such proceeding is being converted into one under section 145, it amounts to drawing up a proceeding under section 145. When a Magistrate outright draws up a proceeding under section 145, he may be satisfied regarding the existence of the two requisite conditions, either on the basis of a police-report or on some information received by him from some other source. But when he converts a proceeding under section 144 or under section 107 into one under section 145, then, apart from the police-report or some other information on the basis of which he had initially initiated the proceeding under section 107, he may have the advantage of looking into the show cause, if any, filed by the parties in that proceeding along with other materials on record on which he can base his satisfaction regarding the existence of an apprehension of a breach of the peace concerning some land. Section 145 (1) requires the Magistrate "to make an order in writing, stating the grounds of his being so satisfied", and it is expected that a Magistrate drawing up a proceeding under section 145 or converting any other proceeding into one under section 145, should generally, state the grounds of his being so satisfied about the two requisite conditions. But, can it be said that, merely because he did not state the grounds of his being so satisfied, the order becomes without jurisdiction or illegal ? In my opinion, the condition precedent to the exercise of jurisdiction under section 145 (1) is the satisfaction of the Magistrate ragrding the existence of an apprehension of a breach of the peace concerning some land, and not his stating or not stating the grounds of his such satisfaction in the order drawing up the proceeding. If a Magistrate does not mention the grounds in his order about his being so satisfied, in appropriate cases, it may be open to this Court to look into the materials to satisfy itself as to whether there were materials on which the Magistrate could have been satisfied that an apprehension of a breach of the peace concerning some land existed. If this Court is satisfied that there were materials, then it-is not open to this Court to weigh as to whether those materials were enough or not for giving satisfaction to the Magistrate to draw up the proceeding under section 145. In the aforesaid case of R.H. Bhutani, the Supreme Court observed as follows: "One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction. The section, no doubt, requires him to record reasons. The Magistrate has expressed his satisfaction on the basis of the facts set out in the application before him and after he had examined the appellant on oath. That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction." (Para 10) It was further observed: "9. The satisfaction under sub-s. (1) is of the Magistrate. The question whether on the materials before him he should initiate proceedings or not is, therefore, in his discretion which, no doub, has to be exercised in accordance with the well recognised rules of law in that behalf. The satisfaction under sub-s. (1) is of the Magistrate. The question whether on the materials before him he should initiate proceedings or not is, therefore, in his discretion which, no doub, has to be exercised in accordance with the well recognised rules of law in that behalf. No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the subsection is clear and unambiguous that he can arrive at his satisfaction both from the police report or 'from other information' which must include an application by the party dispossessed. The High Court, in the exercise of its revisional 'jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate." 14. In the case of Ramswaroop Singh (supra), the Bench of this Court, while examining the legality of an order passed by a Magistrate converting a proceeding under section 144 into one under section 145 of the Code, without stating therein that he was satisfied regarding an apprehension of a breach of the peace and the grounds of his satisfaction, it was observed as follows: "If a particular initial order does not strictly comply with the requirements of sec. 145 (1) Cr. P.C. because it does not state the grounds upon which the Magistrate is satisfied, the order so made is apparently defective, but that by itself cannot imply that the order is without jurisdiction. The jurisdiction of the Magistrate is founded on the factual existence of the two elements referred to above, and it cannot be said that the said jurisdiction is ousted merely because there was an error in the manner in which the jurisdiction had been exercised." It was also held that, merely because the order was defective, it did not mean that the order was without jurisdiction, and in that connection a reference was made to a judgment of the Privy Council in Nalkarjun v. Narhari I.L.R. 25 Bom 337. In Subrahmania Ayyar v King Emperor I.L.R. 25 Mad. In Subrahmania Ayyar v King Emperor I.L.R. 25 Mad. 61 relied upon by the Division Bench in Ramswaroop Singh's case (supra), the Full Bench was concerned with the order of reference to the Full Bench, the relevant portion of which read as follows : "The question, therefore, must necessarily arise, when the jurisdiction of a Court is exercised, not strictly in accordance with the mode prescribed by the Statute, whether the defect amounts to an irregularity or illegality; and the answer to the question in any particular case depends upon the object and character of the rule which has been contravened. Now the object of requiring a statement of the grounds in the initial order is obviously to inform the parties, against whom proceedings arc initiated, of the reasons, which have induced the Magistrate to take action, and thus to enable them to make their defence properly. When, therefore, an initial order has been recorded without a statement of the reasons and has been duly served upon the parties, if they find any difficulty in preparing their defence by reason of this vagueness in the order, it is open to them to apply to the Magistrate for a statement of the grounds or to ask him to amend the order. If, however, the ,parties do not feel any difficulty owing to the omission of the grounds in the initial order, and adduce evidence in support of their respective cases it is difficult to see upon what principle it can be asserted that the defect in the order is an illegality, which vitiates the whole of the proceedings." As will appear from the aforesaid Bench decision, their Lordships came to the conclusion that the jurisdiction of the Magistrate to initiate a proceeding under section 145 of the Code did not depend on the manner in which he drew up the initial order; rather, it depended on the existence of a dispute concerning any land and on his satisfaction from some information, whether by police-report or any other information, that such dispute was likely to cause a breach of the peace. It was held in the said decision that a Magistrate has no jurisdiction to institute a proceeding under section 145, if there is no material at all on the record to show the existence of a dispute concerning land and an apprehension of a breach of the peace on that account. It was held in the said decision that a Magistrate has no jurisdiction to institute a proceeding under section 145, if there is no material at all on the record to show the existence of a dispute concerning land and an apprehension of a breach of the peace on that account. I was also pointed out that it is not open to this Court in revision to go into the sufficiency or otherwise of the materials on which the Magistrate passed the initial order under section 145 (1), unless there be no material at all on the record. In my opinion, the Bench decision in the aforesaid case of Rarnswaroop Singh is quite consistent with the view taken by the Supreme Court in R.H. Bhutani's case (supra). 15. In the other Bench decision of this Court in Jiut Dusadh v. Ashraf Hussain the legality of an order converting a proceeding under section 107 into one under section 145 of the Code was questioned in which the Magistrate had stated neither that he was satisfied that there existed an apprehension of a breach of the peace relating to land nor did he record any grounds of his being so satisfied. In that case, at a later stage, the Magistrate passed an order amending the proceeding and then he stated that there was an apprehension of a breach of the peace relating to bona fide land dispute between the parties. It was held in the said decision, that once a Magistrate is satisfied about the existence of the aforesaid two conditions, he is invested with jurisdiction to institute a proceeding and in this connection it was observed as under : "6. A close examination of sub-sec. (1) of Sec. 145 will show that it deals with two aspects; one bearing upon the jurisdiction of the magistrate to institute a proceeding and the other, upon the procedure which he has to follow after he has decided that such a proceeding should be drawn up. The first aspect relates to the assumption of his jurisdiction and that depends upon his satisfaction with regard to two matters-(i) that there is apprehension of breach of the peace between the parties and (ii) that this is due to some dispute which is in existence between the parties relating to possession over immovable property. The first aspect relates to the assumption of his jurisdiction and that depends upon his satisfaction with regard to two matters-(i) that there is apprehension of breach of the peace between the parties and (ii) that this is due to some dispute which is in existence between the parties relating to possession over immovable property. If the magistrate is satisfied about the existence of these two conditions, then he is invested with jurisdiction to institute the proceeding. What he is enjoined to do thereafter, as indicated in the latter part of sub-sec. (1) and detailed in the subsequent sub-sections of sec. 143, are matters which relate to the manner in which he has to exercise the jurisdiction which he has already assumed. In the second stage he has first to make an order in writing stating the grounds upon which he has been satisfied about the existence of a dispute concerning possession over immovable property and as to the apprehension of breach of the peace between the parties on that ground. He has then to call upon the parties concerned to attend his court and to put in written statement and other materials such as documents and affidavits of witnesses in support of their respective claims about the fact of actual possession over the subject matter of dispute. All these matters relate to the manner of exercise of• the jurisdiction which the magistrate has already assumed. Any error or omission in the matter or manner of the exercise of the jurisdiction which the magistrate has made on the basis of satisfaction with respect to the two matters already enumerated above; in other words, a mere irregularity in the procedure adopted by him after assumption of his jurisdiction, cannot have the effect of rendering the proceeding void. Such irregularity, if any is of no consequence, unless it is of such a nature as to have caused the miscarriage of justice or resulted in prejudice to the parties concerned." It was also observed that omission to record the grounds upon which the Magistrate had been satisfied, as contemplated in section 145 (1), does not touch upon the root of the jurisdiction, and reliance was placed on the aforesaid Supreme Court's judgment in R.H. Bhutani's case. Learned Counsel for the petitioners could not point out as to what is the conflict between the aforesaid two Bench decisions of this Court of as to how anyone of them is contrary to the view taken by the Supreme Court in the aforesaid case. Both the decisions have made a distinction between the factua1 existence of the conditions precedent to the exercise of jurisdiction and the manner in which the said jurisdiction has to be exercised, and it has been held that there is a vital difference between the existence of those requisite conditions and thereafter the manner in which the Magistrate proceeded to exercise his jurisdiction for the purpose of deciding the dispute between the parties. The view taken by the aforesaid two Bench decisions, in my opinion, is in consonance with the decision of the Supreme Court and I am in respectful agreement with the same. 16. When a Magistrate converts a proceeding under section 144 or section 107 into one under section 145 of the Code, he is in a much better position because, apart from the materials on the basis of which he passed the initial order under section 144 or under section 107, he had the advantage of perusing the show cause arid documents if any, filed by the parties, to base his satisfaction that a dispute relating to land existed which was likely to cause a breach of the peace. If the order drawing up the proceeding under section 145 of the Code, which is loosely termed as converting a proceeding under section 144 into a proceeding under section 145, although there is no such expression in the Code, is passed during the subsistence of the proceeding under section 144, then, in my opinion, it is futile to urge that there was no material before the Magistrate to base his satisfaction that there was an apprehension of a breach of the peace; because, obviously, in those circumstances, if there was no such satisfaction, the Magistrate would drop the proceeding, instead of starting a proceeding under section 145, after hearing the parties in the proceeding under section 144. The same can be said with a Magistrate converting a proceeding under section 107 into one under section 145 of the Cede of course, the matter will stand on a different footing if the proceeding under section 144 had spent its force due to the lapse of the statutory period prescribed under subsection (6) of section 144, that is, after a lapse of two months from the date of the making of the initial order under section 144. In that case, in my opinion, different considerations will arise, which, on the facts and in the circumstances of the case in hand, I am not called upon to decide. 17. I must, however, observe that, if a Magistrate has passed an order under section 145 (1), without there being any proceeding under section 144 or section 107 preceding that order, and he has not stated that he was satisfied regarding the existence of an apprehension of a breach of the peace relating to land and the grounds on which he was so satisfied, any party aggrieved by the said order can approach this Court for setting aside that order at that stage, and this Court can, in exercise of its revisional powers under section 435 and 439 of the Code, quash that order and direct the Magistrate to pass an order in accordance with section 145 (1). In the aforesaid two Bench decisions of this Court, the petitioners had come up to this Court after the final order under section 145 (6) had been passed, as the petitioners in the present case. In such cases they are faced with an additional hurdle, because it has been consistently held that an order drawing up a proceeding under' section 145, without stating the grounds of the satisfaction of the Magistrate regarding the existence of an apprehension of a breach of the peace is not an order without Jurisdiction, but only a defective order; and this Court will not set aside and quash the final order passed in the proceeding if the parties to the proceeding allowed the proceeding to proceed and to conclude. This aspect of the matter has been fully discussed in Shibnarayan Das v. Satyadeo Prasad where a Bench of this Court, after holding that an order, in which the Magistrate had not stated in so many words that he was satisfied that there was likelihood of a breach of the peace concerning possession over land while drawing up a proceeding under section 145 during the pendency of a proceeding under section 144, was not without jurisdiction, further observed that the application of the petitioners was liable to be dismissed also on the ground that they allowed the proceeding to continue till final orders were passed and, therefore, they were estopped from challenging the same. In that connection it was observed as follows: "If the Magistrate acted in excess of his jurisdiction, and the second party felt aggrieved by his order, they could have come up in revision against that order. But they did not do so and chose to wait and take the chance of judgment in their favour. The proceeding continued for about a year, the final order being dated 23rd December 1941 and both parties examined a number of witnesses and produced various documents. Much public time and harassment to the parties would have been saved if objection were promptly taken in this Court against the order initiating the proceeding. The revisional powers of the High Court under S. 439, Criminal P.C., cue discretionary and are exercised for the ends of justice. The second party having waited for a year and having allowed the order initiating the proceeding to go 'unchallenged so long, cannot now be heard to complain of excess of jurisdiction, because the final order has gone against them." The same view was taken in Kulada Kinkar Roy v. Danesh Mir, and on the principle of estoppel in such cases in Marsden v Wardle. 18. In my opinion, in the present case, the final order passed in the proceeding under section 145 of the Code cannot be held to be bad. On the basis of a police report, a proceeding under section 144 was drawn up in which both parties filed their respective show cause petitions claiming exclusive possession over the disputed lands and challenging frivolous and attributing each other as the source of causing the apprehension of a breach of the peace. On the basis of a police report, a proceeding under section 144 was drawn up in which both parties filed their respective show cause petitions claiming exclusive possession over the disputed lands and challenging frivolous and attributing each other as the source of causing the apprehension of a breach of the peace. The learned Magistrate heard both sides and then he passed the order converting the proceeding under section 144 into one under section 145 of the Code. It is obvious that, if he was not satisfied regarding the existence of an apprehension' of a breach of the peace concerning the lands, he would have dropped the proceeding under section 144 instead of drawing up a proceeding under section 145 during the pendency of the' proceeding under section 144. Moreover, in the notice issued to the parties, in pursuance of the said order of conversion, it was mentioned that from the police-report it appeared that a dispute likely to induce a breach of the peace between the parties with regard to the plots referred to existed and, as such, the Magistrate was directing both the parties not to go upon the lands in dispute or to create any breach of the peace between themselves. The said notices had been signed by the Sub-divisional Magistrate, and, as such, it cannot be said that, when he converted the proceeding under section 144 into one under section 145 of the Code, he was not satisfied regarding the existence of any apprehension of a breach of the peace relating to bona fide land disputes, making the initial order itself without jurisdiction. Once it is held that the order drawing up the proceeding under section 145 was not without jurisdiction, the final order passed in the said proceeding cannot be quashed merely on the ground that the initial order drawing up the proceeding was not strictly in terms of section 145 (1) of the Code. As I have already observed, it is expected that Magistrates, while 'initiating proceedings under section 145, or while converting proceedings under section 144 or section 107 into one under section 145 should conform to the requirements of section 145 (1) of the Code. But, merely for non-compliance therewith the final order passed in such proceedings under section 145 cannot be held to be either illegal or without jurisdiction. 19. But, merely for non-compliance therewith the final order passed in such proceedings under section 145 cannot be held to be either illegal or without jurisdiction. 19. It was next contended by learned Counsel for the petitioners that the final order passed in favour of the members of the second party-opposite party is bad due to non-consideration of material evidence. The case of the members of the first party-petitioners is that they are in possession of the disputed lands of Jamabandi No. 58, which were recorded in the name of Nanku Khalda. The said Nanku had a daughter named Bhagjogni, who had three daughters, Shahjadi, Debki and Bimla Kali (petitioner no. 1). Shahjadi died during time of her mother and maternal grand-father, Nanku. Nanku died in the year 1942. After his death, his remaining two daughters, Debki and Bimla (petitioner no. 1), inherited his properties, including the disputed lands, and since then petitioner no. 1, along with her sister, Debki, had been in possession of the disputed lands. Later, Debki died and thereafter petitioner no. 1 and petitioner no. 2, who is her son, are in actual physical possession of the disputed lands. 20. The case of the second party-opposite party, however, is that one Roop Singh Khalda had two sons, Nanku and Ranjeet. Nanku was not married and he died issueless. His brother, Ranjeet, had two daughters, Guloand, Katkahi. Ranjeet died first. After the death of Nanku, his two nieces, Gulo and Katkahi, inherited his properties, including the disputed lands, and came in possession thereof. 21. The learned Magistrate observed in his order that there was no document to show that Bhagjogni was the daughter of aforesaid Nanku; on the other hand, the settlement parcha of Jamabandi No. 95 of Village Amra Kanauli showed that Bhagjogni Kali and her sister, Karu Mani, were daughters of one Ghulam Ali or Ghulab Kali. He has also referred to a petition filed by petitioner no. 1 in 1958 in Revenue Misc. Case No. 12 of 1958-59 in the Court of the Sub-divisional Officer, Godda for cancellation of bhugutbandha deeds. This fact has been admitted by petitioner no. 2 in his affidavit. In the aforesaid petition, petitioner no. 1 had clearly admitted that she was the sister's daughter of Nanku and that Gulo Kali and Katkahi Kali were the daughters of Ranjeet, who was full brother of Nanku. This fact has been admitted by petitioner no. 2 in his affidavit. In the aforesaid petition, petitioner no. 1 had clearly admitted that she was the sister's daughter of Nanku and that Gulo Kali and Katkahi Kali were the daughters of Ranjeet, who was full brother of Nanku. It was further admitted that the said Gulo and Katkahi were in possession of 5½ bighas of lands which had been recorded in the name of Nanku. 22. Learned Counsel for the petitioners has, however, submitted that the learned Magistrate had not properly considered the important documents filed on behalf of the petitioners; but during the course of arguments he could not show as to which of the important documents, which had some relevancy on the question of possession, had not been considered' by the learned Magistrate. No details of the documents have been given in the application in revision. Learned Counsel further urged that the petitioners had also tiled rent receipts and they should have been given due weight. Learned Magistrate has referred to the rent receipts, but has observed that the petitioners had not filed continuous rent receipts for years whereas the members of the second party had filed as many as 15 rent receipts in support of their claim of possession. Learned Counsel for the petitioners has drawn our attention to the consideration of affidavits by the learned Magistrate. In my opinion, it cannot be said that the consideration of the affidavits is not in accordance with the requirements of law. Learned Magistrate has referred to the different affidavits and has given cogent reasons for accepting the affidavits filed on behalf of the members of the second party. 23. Learned Counsel for the petitioners has also urged that the learned Magistrate has not considered the order of commitment passed against the members of the opposite party, which lends support to the case of possession of the petitioners. It is well known that an order committing an accused to the Court of Session cannot be any evidence of possession either in favour of one or the other party. 24. In my opinion, no case has been made out by the petitioners for interfering with the order under revision on merits. It is well known that an order committing an accused to the Court of Session cannot be any evidence of possession either in favour of one or the other party. 24. In my opinion, no case has been made out by the petitioners for interfering with the order under revision on merits. A proceeding under section 145 of the Code is a summary proceeding where the Magistrate has to consider, on the materials placed before him, as to which of the parties was in actual physical possession of the subject of dispute on the date when the proceeding was drawn up. 25. In the result, I do not find any merit in this revision application. It is, accordingly, dismissed. Application dismissed.