Satish Sadan vs Prithvi Raj And Anr.
1989 Latest Caselaw 176 Del

JUDGMENT

P.K. Bahri, J.

(1) This petition has been brought under Section 482, Code of Criminal Procedure seeking the quashment of the proceedings and the final order dated November 19, 1981 made by the S.D.M. under Section 145 of the Code, and also the order of Additional Sessions Judge dated November 15, 1983 by which the revision petition brought by the petitioner was dismissed.

(2) Facts, in brief, are that respondent No. 1 Prithvi Raj had taken on rent shop/garage No. 78(5) Tolstoy Lane, Connaught Place on the rental of Rs. 15 per month in the year 1966 or so. Admittedly there are many landlords .of the said premises and one of them is Satish Roy Kapur. On July 27, 1977, Prithvi Raj and the petitioner Satish Sadan entered into a partnership agreement, copy of which is Ex. DWI/A on the basis of which on July 30, 1977, Rs. 4.000 were paid by Satish Sadan to Prithvi Raj, respondent No. I vide receipt copy of which is Ex. Db which indicates that the same bad been given as advance of profits covering the period of four months. One of the terms of the partnership agreement was that respondent No. I Prithvi Raj was to be paid Rs. 1000 per month minimum profit. The case of the petitioner is that in fact respondent No. I Prithvi Raj had sublet the said premises to him at the rental of Rs. 1000 per month but a sham partnership deed was executed so that the factum of subletting may remain concealed from the landlords and on the basis of the said transaction, the petitioner is stated to have come into the exclusive possession of the said garage with effect from August 1. 1977. On April 20, 1978, Prithvi Raj, respondent No. I had given a complaint, Ex. Dn to the Sho, Police Station Gonnaught Place mentioning that be has been the tenant in the said premises since 1966 and on April 3, 1978, the shop in question was broken open by Satish Sadan, his previous partner at about 11.30 P.M. and he bad removed his board of Hind Book House which stood earlier, fixed on the gate of his shop and had put his own locks on April 4, 1974 after throwing out the books and the racks belonging to the respondent outside the shop. According to this complaint respondent bad come to know of this fact only on the next morning at 11 A.M. and he immediately went to the Parliament Street Police Station and brought this fact to the notice of the S.P. So, he stated that petitioner bad taken possession of the said shop illegally by breaking open the the lock and some of the books belonging to the respondent were not still traceable and had been perhaps kept by the petitioner. So, he wanted that the possession of the shop be restored to him.

(3) Petitioner Satish Sadan had also given a complaint to the police which is dated April 7, 1978 in which he had mentioned that he had taken this particular premises on rent from respondent Prithvi Raj and his staff comprising of five persons were working in the premises and were engaged in stitching garments and respondent and his representatives had come to the premises earlier and asked them to vacate the premises immediately and be expected some untoward action on the part of the respondent and his companions and he sought protection of the police. The Sho of that police station put in a Kalandra dated May 4, 1978 before the S.D.M. in which he narrated the facts as appeared in the said two cross complaints received from petitioner and respondent No. I and he expressed apprehension that there might not take place any breach of peace. So, he submitted that action may be taken. Kalendra was put in under Punjab Police Rule 23.32.

(4) The learned S.D.M. without passing any preliminary order under Section 145(1) of the Code had directed for issuance of processes to the parties for their appearance before him on May 15, 1978 in connection with the enquiry under Rule 23.32 of the Punjab Police Rules. Parties filed their respective statements and documents reiterating their pleas. The respondent had submitted a complaint also dated April 4, 1978 to Superintendent of Police Ex. Dm in which he submitted that according to the partnership deed a business of the partnership was to commence w.e.f. August 1, 1977 but the partnership had never functioned and on March 31, 1978 be bad sent a letter to the petitioner intimating that be was no longer interested in the partnership business. He alleged that in fact he was in possession of the premises and bad kept his books and racks in the same and petitioner had broken open the locks on April .3, 1978 and bad removed his signboard and on the following day in the morning be bad thrown out his books, racks and his employees bad occupied the shop and be was not allowing respondent to enter the said shop. On May 31, 1978 respondent submitted a petition to the S.D.M. praying that proceedings under Section 145 be initiated and he be restored the possession of the premises. Ex. Public Witness I/B is the copy of the partnership deed executed between the parties in which it was mentioned that a business of sale and purchase of garments shall be carried out in the premises and it shall commence from August 1, 1977 and the partnership can be kept dissolved by giving a notice by registered post. The whole capital in respect of the business was to be contributed by petitioner Satish Sadan was to pay Rs. 100 per month minimum profit although it was also mentioned that the profit shall be shared between the parties and the name of the partnership business was to be International Agency and it was the whole responsibility of the petitioner Satish Sadan to keep all the accounts and the tenancy of the premises was to remain in the name of the respondent. The Bank Account was to be opened which was to be operated jointly by the partners. The partnership was not to get any loan from any person without the joint decision of the two partners and in case of dissolution, petitioner was to ascertain profit and loss position and all assets and liabilities of the firm were to be taken over by him and he was to pay the balance in the capital account of respondent in cash. Then there was an arbitration clause inserted in this deed. The respondent bad also placed on record certain electricity bills of the period July 1977 to March 1978 showing that he had paid the electricity charges in respect of this shop. Then he has also placed on record copy of the letter written by him to the Assistant Commissioner Officer protesting against over-charging of Rs. 38 in the Electricity Bill. Then he mentioned about his having sold certain books from the premises to Lakshmi Book Store. Famous Book Store, Associated Book Centre and Verma Brothers and he placed on record copies of the bills. He has also placed on record Ex. PWI/C. an alleged notice issued by him to petitioner dated March 30, 1978 mentioning that as petitioner bad not taken any steps for starting the partnership business and the partnership had not been got registered and no joint account in the Bank had been opened and the property was still in his possession and he wanted to start his own business and thus the partnership be considered dissolved. However. no registered notice, as contemplated by the terms of the partnership was sent for dissolving the partnership.

(5) Petitioner in his written statement gave out the facts as have been mentioned by me above pleading that the partnership deed was executed as a camouflage to conceal factum of subletting and that Rs. 4000 were paid in advance as rent and he came into possession of the shop with effect from August 1. 1977 after paying the said amount; and that no person would pay Rs. 4,000 as advance profit when no partnership business had yet commenced. He also mentioned that be bad filed the petition seeking fixation of standard rent in January 1978, giving all particulars of ^he premises in that petition and had also taken out an insurance policy in respect of the goods kept by him in the said premises and also indicated that be bad paid Rs. 4,000 which covered the payment for the period August 1977 to March 1978 and that the complaints of the respondent to the police did not show that there could take place any apprehension of breach of peace and it was not a fit case for initiating any proceedings under Section 145 in as much as petitioner has been in continuous physical possession of the premises since August 1,1977.

(6) The learned S.D.M. in view of the facts coming on the record vide order dated June 24, 1978 held that the proceedings under Section 145 Criminal Procedure Code are not maintainable in as much as the civil court had passed an order dated May 16, 1978 directing the parties to maintain status quo. It is an admitted case that the petitioner had instituted a civil suit against respondent No. I seeking permanent injunction restraining the respondent No. I from interfering with the possession of the petitioner in the premises in question and an interim order had been passed by the civil Court requiring the parties to maintain status quo. Admittedly, later on respondent No. I made a statement on September 28, 1978 in the civil Court giving an undertaking that he shall not dispossess the plaintiff (petitioner now before me) from the suit premises without due process of law and the said suit was then dismissed as withdrawn, in view of the undertaking of the respondent No. I given on September 25, 1978. Respondent No. I had filed a criminal revision against the order of the S.D.M. by which he held that the proceedings under Section 145, Cr.P.C. were not maintainable and the criminal revision came to be allowed by Additional Sessions Judge vide the order dated August 6. 1979 in which it was held that more filing of the suit and passing of the order of the status quo would not have the effect of making the proceedings under Section 145 Cr.P.C. infructuous. So, the order of the S.D.M. was set aside and the case was sent back to the S.D.M. for proceeding with the matter in accordance with law.

(7) The learned S.D.M. thereafter obtained another report from the police whether there still persisted any apprehension of breach of peace pertaining to the possession of the premises in question or not and after receiving such report, he proceeded to pass a preliminary order under Section 145(1) of the Code on November 8, 1979 and thereafter the parties filed their respective written statement and after recording the evidence the S, passed the impugned order.

(8) It is pertinent to mention that S.D.M. had given certain findings which clearly show that he did not believe the case of Prithvi Raj respondent that he had been forcibly dispossessed in, April 1978. He had given some good reasons for coming to this particular finding. .Even the revisional court did not question this finding of the S.D.M. It is not necessary for me to re-assess the evidence on this particular finding of the learned S.D.M. that respondent has failed to prove that he was forcibly and illegally dispossessed from the premises in question in April 1978 as alleged by him because some good reasons have been given by the S.D.M. for arriving at that particular finding. The important piece of evidence which was noticed by -the S.D.M. for disbelieving the watchman's statement with regard to alleged dispossession of respondent on 3rd/4th April 1978 was that the petitioner and his companion Satish Roy Kapur had travelled to Lucknow from Delhi and back during the period on the basis of the air tickets proved on record and so both of them could not have been possibly in Delhi when the alleged forcible dispossession from the premises in question took place. If that is so. the fact remains that even prior to the alleged dispossession of the respondent in April 1978 the inference is that it was petitioner who was in continuous possession of the premises and the only crucial question which could be decided by the S D, was as to when the petitioner came into possession of the premises. For that purpose the petitioner had proved on record the copy of the written statement filed in the rent control proceedings in which the respondent had categorically made an admission to the follow- ing effect: "THE petitioner after entering the property as partner, refused to work to the partnership......"

This written statement was dated April 17. 1978. The above admission of the respondent could have clinched the issue before the S.D.M. that in fact the petitioner had come into physical possession of the premises on the basis of the alleged partnership deed as far back on August 1, 1977 after respondent had received Rs. 4,000 from the petitioner in the garb of future profits of four months. If the conclusion is irresistible that the petitioner came into physical possession exclusively on the basis of the said partnership deed on payment of Rs. 4,000 then he continued to remain in possession of the premises in question at all relevant times because the story of the respondent that he was dispossessed physically from the shop in question in April 1978 stood disbelieved. The petitioner had led in evidence a copy of the Insurance Policy and copy of the forms for sanction of telephone which were brought into existence by Satish Kapur much before the controversy arose between the parties with regard to the property in question. Satish Kapur had shown himself as proprietor of M/s. International Agency in the form pertaining to sanction of the telephone at the premises in question and in the insurance policy which is taken in the name of M/s. International Agency, the same is shown 'care of again Satish Kapur. It has come up in evidence of Satish Kapur as well as petitioner that both of them are partners and very close relations in as much as their mothers are real sisters and thus they are undoubtedly hand-in-glove with each other. If in case the posses- sion of the premises had not been transferred by respondent on the basis of the alleged partnership deed in favor of the petitioner, there could arise no occasion for the insurance policy being taken a nJ the form being filled in for getting the telephone installed at the premises in question in the name of M/s. International Agency. The S.D.M also had given a finding that respondent had transferred the possession of the premises in question in favor of M/s. International Agency but the S.D.M. committed a gross error in coming to the conclusion that in fact the possession had been delivered to a partnership firm. It was even the case of the respondent that alleged partnership had never functioned. So, the question which was of significance was whether the physical possession of the premises had been transferred to to the petitioner on the basis of the alleged partnership deed which rather stood admitted by the respondent in his written statement filed by him in opposition to the standard rent petition moved by the petitioner before the Controller under the Delhi Rent Control Act.

(9) The scope of provisions of Section 145(6) of the Code is no longer in dispute as it has been settled by the Supreme Court in Bhinka and others v. Charan Singh, where it has been laid down as follows: Criminal Procedure Code (1898), Sec. 145(6)-Order f.r possession under-Nature of-Does not decide title.

In passing an order under Section 145(6), Criminal Procedure Code, the Magistrate does not purport to decide a party's title or right to possession of the land but expressly reserves that question to be decided in due course of law. The foundation of his jurisdiction is an apprehension of the breach of the peace, and, with that object, he makes a temporary order irrespective of the rights of the parties which will have to be agitated and disposed of in the said manner provided by law. The life of the said order is coterminous with the passing of a decree by a civil court and the moment a Civil Court makes an order of eviction, it displaces the order of the Criminal Court. The orders are thus merely police orders and decide no question of title."

(10) So, in proceedings under Section 145, Cr.P.C. the S.D.M. is only to determine as to which of the parties was in physical possession of the premises at the relevant time. Once the S.D.M. had given a categorical finding that the version of the respondent that he was physically dispossessed from the premises on 3rd/4th April 197^ was false, the only the possible inference from that finding could be that the petitioner was in continuous possession of the premises prior to that date. It that is so, the admission made by the respondent in the written statement became very important which clearly shows that even respondent admitted that petitioner entered into the premises on the basis of the said partnership, it is a common case of both the parties that no partnership business was ever transacted on the basis of the said partnership deed. It is not for this Court to go much deeper into the question as to whether the said partnership was just a camouflage to conceal the factum of subletting on the part of the respondent. According to the respondent a conspiracy appears to have been hatched between the petitioner and Satish Roy Kapur by concealing the fact from the respondent that Satish Roy was one of the landlords of the premises and their motive was to dispossess the respondent from the shop in question by inducing him to enter into the fictitious partnership transaction. Even if for the sake of argument, the averments of the respondent in this connection are taken as true on face value, even then the only inference possible is that the respondent had been deprived of physical possession of the premises in question by the petitioner in conspiracy with Satish Roy, one of the co-landlords. If that is so, there can be no occasion for the S D.M. to have initiated the proceedings under Section 145 and there could be no occasion for the S.D.M. not to give a categorical finding that infact petitioner was in physical possession of the premises in question on his own in complicity with Satish Roy at the relevant time. The S.D.M's finding that he was not in a position to come to such a categorical finding, to say the least is perverse once he has disbelieved the version of the respondent on the crucial point. The S.D.M. had in his detailed judgment noticed the material facts which clearly showed that the cash memos which had been proved by the respondent in order to show that respondent bad opened his book shop in the premises in question soon after sending the notice of dissolution of partnership were not genuine. The S.D.M. bad noticed in detail the deficiencies existing in the evidence of the respondent in the respect. The respondent had also examined certain witnesses who orally rendered support to the version of respondent that in fact respondent had shifted books and racks in the garage in question after issuing of notice of dissolution of partnership. The respondent had admitted in his statement that on April 4, 1978 on his complaint the police had come to the spot and found the goods of the respondent lying outside the premises in question. No police official who had seen such goods lying outside the premises in question was examined as a witness. No daily diary report of the police had been produced in evidence by the respondent corroborating his testimony and the testimony of the witnesses that the goods of the petitioner were lying outside the premises in question at the relevant time. On account of these deficiencies appearing in the evidence of the respondent that the S.D.M. came to the firm conclusion that she version of the respondent that he was forcibly and illegally dispossessed on April 3, 1978 was false. The S.D.M. was wrong in ignoring the said insurance policy and the document regarding sanction of the telephone by saying that Satish Roy's name had been mentioned in the said document because it is the case of the respondent himself that petitioner and Satish Roy had joined hands in order to get physical possession of the premises in question from him in the shape of alleged partnership although respondent took up the position that be had not at any time given possession of the premises in question to the petitioner or Satish Roy at any time. The respondent's version stood belied in view of his own admission in the written statement that petitioner entered into the premises on the basis of the partnership.

(11) The learned counsel for the respondent then tried to argue that the possession in fact had been transferred to the partnership business, meaning thereby that both the partners came into joint physical possession of the premises in question. It is pertinent to mention that in the written statement the respondent did not take the plea that physical possession of the premises was retained by him and at no point of time had been transferred to the petitioner. He never took the plea that on the basis of the partnership, petitioner and he himself came into physical possession of the premises. Prima facie if we keep in view the contents of the partnership deed and the payment of Rs. 4,000 in lump sum as future profits for four months and the fact that no investment was to be made by the respondent in the so called partnership business and that no partnership business was ever transacted, supported the case of the petitioner that in fact in the garb of the partnership, a sub-tenancy was sought to be created Be it as it may, if the findings of the learned S D.M. are perverse this Court is duty bound to reverse those findings.

(12) Mere sending of a dissolution notice by the respondent would not have altered the physical possession of the present premises in question. it is not the law that as soon as a person may be in law entitled to have possession of the premises in question, would be deemed to be in possession if a notice for dissolution of partnership is served by him. Another material document which was proved on record was the letter to request issued by the respondent to Satish Roy in which he made a grievance that advance profits of Rs. 1,000 per month in respect of premises in question. It is not understood if no partnership business at all was transacted in the premises in question and even the partnership had not commenced functioning where can be the question of one of the partners getting any sort of profits from the partnership business even though the partnership deed contemplated payment of Rs. 1.000 per month as minimum profit to the respondent. The question of giving any profit to the respondent could arise only when the partnership had started functioning. Mere execution of partnership deed would not mean that partnership business had commenced. Admittedly no steps had been taken for commencing the partnership business in the premises in question. So, there could be no reason for the respondent to have demanded Rs. 1,000 per month from Satish Roy or from the petitioner unless the transaction entered into between the parties was not in fact meant to be a real partnership business. That also renders support to the petitioner's version that in fact this partnership deed was just a sham document brought into existence with a view to conceal the factum of sub-letting. The version of the respondent is that he had written a letter demanding Rs. 2,000 to Satish Roy in order to obtain the price of certain books purchased by his wife. No documentary evidence was produced on record by the respondent to support his plea and even the learned S D.M. did not find any truthfulness in this particular version of the respondent. This letter was written by the respondent on December 28, 1977. The counsel for the respondent has argued that this letter was not addressed to the petitioner but the learned counsel for the petitioner forgets that it is the case of the respondent himself that Satish Roy and petitioner had joined hands in inducing the respondent to enter into this particular transaction on the basis of the partnership deed. The partnership deed is also signed by Satish Roy as one of the witnesses. So, the respondent was aware of relationship between the petitioner and Satish Roy and that case supports the version of the petitioner that it is he and Satish Roy who were to utilise the premises in question for storing the garments. They were already partners in the business of garments. It is admitted by respondent that be was having his regular shops at different premises and he had kept the premises in question vacant and earlier also entered into partnership business with some other person and that business continued in the premises for some years and later on the premises were kept vacant till the present transaction was entered into. I must say that the Additional Sessions Judge while deciding the criminal revision did not try to take into consideration the evidence led on record and the circumstances appearing in the case.

(13) At the stage of arguments at first the learned counsel for the respondent raised the preliminary objection that this Court should not interfere with the order of the S.D.M, in exercise of its powers under Section 482 Cr.P.C. but when it was brought to his notice that even the respondent by moving the application in this Court had prayed that this Court should set aside the order by resorting to the powers under Section 482 of the Code in order to set aside the finding of S.D.M. and to direct possession of the premises be given to the respondent, the learned counsel for the respondent did not pursue his preliminary objection. I think it is the most fit case where this Court should invoke its inherent powers under Section 482 Cr.P.C. for setting aside the impugned orders as those orders appear to be, on the face of the perverse. Apart from the decision arrived at by me on the question of fact for the reasons given above it alone is sufficient to allow this petition and for setting aside the impugned orders and for declaration that it was petitioner who was in physical possession at all relevant times and he was to continue in possession till the parties got their rights determined from the Civil Court, I may also notice the legal challenge raised to the initiation of proceedings under Section 145. In the very beginning it has come on the record that no preliminary order under Section 145(1) was made initially by the learned S.D.M. He only wanted to enquire into the report submitted to him under Rule 23.32 of the Punjab Police Rules. The said provision shows that if a police officer receives some information whether collected directly or received by way of a complaint at the police station and if no immediate breach of peace is anticipated, then the police officer shall send the report to the Magistrate that there exists some disputes which are likely to lead to a breach of peace and if any immediate breach of peace is apprehended, the police officer can take action straightaway under Section 151 of the Code of Criminal Procedure. The police officer has no power to investigate a formal complaint made under Section 107 of the Code. The provisions contained in this particular rule pertain to the proceedings which are to be initiated under Section 107 and 151 of the Code. In the present case the police had submitted the report to the S.D.M. under this particular rule. The S.D.M. did not think it fit to pass any preliminary order under Section 145(1) on the basis of this police report. It is only when he had dropped the proceedings and in revision the revisional Court set aside his order dropping the proceedings that he asked for another report from the police on the point whether there appears to be any apprehension of breach of peace pertaining to the possession of the premises in question; that a police report was submitted and a preliminary order under Section 145(1) Cr.P.C. was passed.

(14) The learned counsel for the respondent has argued that the initial order made by the S.D.M by which he proceeded to hold some enquiry on the basis of the police report given under rule 23.32 should be treated as a Preliminary order under Section 145(1), Cr.P.C. It is true that that if from the order and the facts appearing on the record it is to be inferred that S.D.M had proceeded to pass a preliminary order under Section 145(1) of the Code then mere omission of the S.D.M. to specifically saying in the order that such an order was being made would not be fatal. in Mettupalli China Kondappa (died) by L.Rs. China Venkatareddy and others v. Ramsetty Ram Row and another', 1964 (1) Criminal Law Journal, 391 no order of any kind was passed by the Magistrate. It was held that proceedings under Section 145 are judicial and it is the duty of the Magistrate functioning as such to discharge the functions himself. In the said case a Clerk of the Magistrate had signed the notice under section 145(1) and it was held that in the absence of any formal order made under Section 145(1) by the Magistrate, the proceedings which started thereafter and culminated in the final order became vitiated. In R.H. Bhutani versus Miss Mani J. Desai, the Supreme Court laid down the law in respect of the satisfaction of the Magistrate pertaining to proceedings for passing a preliminary order under Section 145(1) : "The satisfaction under sub's. (1) of Section 145 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 doubt 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 sufficient of material for this satisfaction. The language of sub-section 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."

(15) In SardariLal and another v .The State of Punjab and others', 1980 Criminal Law Journal, 1151 it was laid down that the Magistrate must record in his order the grounds of his being satisfied regarding existence of a dispute with regard to possession of the premises which may give apprehension of breach of peace before passing an order under Section 14(1). It was contended before the Punjab and Haryana High Court that the statement of grounds in the order showing the Magistrate being satisfied which has to reflect his subjective satisfaction is a ore-requisite to be mentioned in the preliminary order under Section 145(1). This argument was upheld. In the cited case also no grounds were forthcoming in the preliminary order under Section 145(1) from which the Magistrate could subjectively be satisfied for passing the preliminary order under Section 145(1). The order was held to be vitiated. The mere perusal of Section 145(1) contemplates that Magistrate has to record the grounds of being satisfied regarding the existence of the disputes of the nature contemplated therein.

(16) In Ghasi Ram Pradhan v. Surendra Singh and Ors. 1984 (2) Crimes 724, the scope of Section 145 was examined. It was laid down that the Magistrate has to be satisfied that a dispute likely to cause breach of peace exists concerning any property and the preservation of peace and public tranquillity or the prevention of the breach of peace are the sheet- anchor round which the entire machinery under Section 145 of the Code rotates. It was held that the condition precedent for initiating a proceeding under Section 145(1) is the satisfaction of the Magistrate that a dispute is likely to cause a breach of peace exists. It was also laid down that such satisfaction need not be recorded if proceedings have been taken on a valid preliminary order made under Section 145(1). So, while passing a preliminary order under Section 145(1), it is incumbent on the part of the Magistrate to record the grounds for his being satisfied that a dispute of the nature contemplated in the section exists. The Bombay High Court also in Smt. Maria Zazarte v. The State & Ors. held that one of the essential conditions of passing a preliminary order under Section 145(1) is that Magistrate must record satisfaction and also the grounds of his being so satisfied.

(17) In the present case when the S.D.M, had passed the first order in the case he did not record his satisfaction or any grounds of his being so satisfied. So, the first order made in the case was not by any stretch of reasoning a preliminary order made under Section 145(1) of the Code. The preliminary order under Section 145(1) of the Code came to be made by the S.D.M. only on November 8, 1978. But by that time the respondent had already given an undertaking to the Civil Court that he shall not dispossess the petitioner forcibly except by due process of law. The words due process of law' mean that the party shall not take resort to force or illegal methods in settling his disputes. It would mean that by giving such a statement before the civil court the respondent removed any possibility of breach of peace being there with regard to the possession of the property. If that is so, the Magistrate was not at all justified legally in passing any preliminary order under Section 145(1) on November 8, 1978. So, the very basis of the satisfaction that there is likelihood of breach of peace occurring with regard to the dispute regarding possession of the premises in question bad disappeared when the respondent bad in the civil suit made a categorical statement that be would not dispossess the petitioner except by due process of law. Even if any possibility of breach of peace occurs in spite of the petitioner having given such a statement even then the resort could not be bad to Section 145 because in that situation the parties could be proceeded against under Section 107 Cr.P.C. The very purpose and object of proceedings under Section 145 is to see that no breach of peace occurs on the disputed question of fact with regard to possession of a particular property. In the present case at the time the preliminary order under Section 145(1) was passed on November 8, 1978 no prudent person could come to'the conclusion that there was any possibility of any breach of peace occurring vis-a-vis the possession of the premises in question when the respondent had already given an undertaking to the Civil Court that he shall not dispossess the opposite party except by due course of law. So, the very foundation of passing the order under Section 145(1) of the Code had disappeared earlier. Hence, the order made under Section 145(1) Cr.P.C. was non est.

(18) In view of the above discussion I hold that the impugned orders are liable to be set aside. I allow the petition and quash the impugned orders and also the proceedings. Parties are, however, left to bear their own costs.