JUDGMENT 1. 1. Upon the complaint of the petitioner Hira Lal, the learned Sub-Divisional Magistrate, Mount Abu initiated the proceedings Under Section 145 Criminal Procedure Code in the Criminal Original Case No. 14/91 and the initiatory order was drawn on 20.12.1991. The learned Magistrate then proceeded to launch an inquiry as to the possession of the subject of the dispute Under Section 145(4) Criminal Procedure Code and vide his order dated 26.3.1992 the learned Magistrate found himself unable to decide as to which of the parties was in possession of the subject matter of the dispute and consequently he ordered Under section 146 Criminal Procedure Code for the attachment of the property in question and appointment of the receiver and the parties were directed to get the dispute regarding title and ownership decided by the competent civil Court. After passing such order the learned Magistrate closed the matter. The matter was then carried in revision before the learned Sessions Judge, Sirohi, who vide order dated 28.7.1993 held that the possession was of the non-petitioners respondent Nos. 2 to 5 through one Hari Ram and accordingly it was ordered that the possession be given to them and set aside the order of the learned Magistrate dated 26.3.1992. Aggrieved by this, the petitioner has preferred this revision. 2. I have heard the arguments of both the sides. 3. The learned Magistrate's jurisdiction Under Section 145 Criminal Procedure Code depends upon there being a dispute to create a breach of peace. Unless the Magistrate is satisfied that there is a likelihood of breach of peace, he cannot proceed Under Section 145 Criminal Procedure Code. He should state of his satisfaction about the existence of dispute concerning the possession of immovable property which is likely to cause breach of peace. A Magistrate's order initiating the proceedings ought to set out grounds on which he is satisfied that the dispute likely to cause breach of peace exists. Under Section 145 Criminal Procedure Code it is mandatory upon the Magistrate to record his satisfaction about the apprehension of his breach of peace and grounds of his belief. 4. A perusal of the initiatory order dated 20.12.1991 from the file of the case No. 14/91 of the learned Court of S.D.M., Mount Abu would show that the learned Magistrate has not even stated that he is satisfied that there is any apprehension of breach of peace. 4. A perusal of the initiatory order dated 20.12.1991 from the file of the case No. 14/91 of the learned Court of S.D.M., Mount Abu would show that the learned Magistrate has not even stated that he is satisfied that there is any apprehension of breach of peace. He has simply said that:- " geus ifjokn dk voyksdu fd;kA ge izFke n`f"V; ifjokn ls lUrq"V gSaA ifjokn vizkFkhZx.k ds fo:) vurxZr /kkjk 145 lhvkjihlh esa ntZ jftLV~j gksA-------------------------- " Obviously satisfaction with the complaint does not imply the satisfaction that there is any apprehension of breach of peace. A perusal of the order would show that the learned Magistrate has passed the initiatory order under Section 145(1) Criminal Procedure Code without even stating that he is satisfied that there is apprehension of breach of peach. Therefore, the initiatory order dated 20.12.1991 is not in accordance with the law. 5. The use of word "then" at the beginning of sub-section (4) of Section 145 indicates that the question of determination of the factum of possession under sub-section (4) arises only after the requirement of sub-Sections (1) & (3) have been complied with. Since the order Under Section 145(1) Criminal Procedure Code is not in accordance with the law the question of determination of the factum of possession does not arise at all. In the absence of the requirement of sub-sec. (1) in respect of the satisfaction of the Magistrate about the apprehension of breach of peace the whole exercise seems to be without jurisdiction. 6. The words "receive all such evidence" occurring in sub-section (4) of Section 145 Criminal Procedure Code indicate that under the Criminal Procedure Code the Magistrate cannot dispose off a proceeding on the basis of affidavits. A Magistrate has to receive all the evidence including the oral evidence as may be produced by the parties and take such further evidence, if any as he thinks necessary to decide the possession of the subject of the dispute. Recording of the oral evidence is, however, not compulsory in enquiry regarding possession if none of the parties desire to produce such evidence. Though it is left to the parties to adduce evidence yet reasonable opportunities have to be given to them to produce their witnesses and documents, if any. 7. Recording of the oral evidence is, however, not compulsory in enquiry regarding possession if none of the parties desire to produce such evidence. Though it is left to the parties to adduce evidence yet reasonable opportunities have to be given to them to produce their witnesses and documents, if any. 7. From the perusal of the file of the Court of learned Magistrate, it seems that he proceeded to decide the question of possession of the subject of the dispute without affording any opportunity to the parties to produce the evidence. There is nothing on record to indicate that the parties had desired not to produce the evidence. The learned Magistrate disposed off the proceeding on the basis of the affidavits only without affording any opportunity to the parties to produce the evidence. This aspect of the matter has not been taken into account by the learned Sessions Judge, Sirohi while disposing off the revision petition. The learned Sessions Judge also decided the question of possession not on the basis of the evidence but on affidavits. Obviously the parties were not afforded an opportunity to produce the evidence. Therefore, it cannot be said that all such evidence as has been produced by the parties has been received on record. Therefore, the provisions of sub-sec. (4) of Section 145 Criminal Procedure Code have not been complied with. 8. The result of the aforesaid entire discussion is that the order dated 26.3.1992 of the learned S.D.M., Mount Abu as well as the order dated 28.7.1993 of the learned Sessions Judge, Sirohi cannot be sustained and the matter is required to be sent back to the learned Magistrate for deciding the matter afresh according to law from the stage of initiatory order. 9. Accordingly the order dated 26.3.1992 of the learned S.D.M., Mount Abu and the order dated 28.7.1993 of the learned Sessions Judge, Sirohi are set aside and the matter is remanded to the learned S.D.M., Mount Abu to decide the matter afresh according to law from the very first stage of initiatory order Under section 145(1) Criminal Procedure Code regarding his satisfaction about the existence of the dispute concerning the possession of the immovable property in question and consequently the apprehension of breach of peace. 10. The petition is disposed of accordingly.Petition Allowed. *******