RAJPATI versus BACHAN & ANR.

Citation: [1981] 1 S.C.R. 92 · Decided: 28-07-1980 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
92 
I 
RAJPATI 
v. 
BACHAN & ANR. 
July 28, 1980 
[S. MURTAZA FAZAL Au AND A. P. SEN, JJ.] 
Criminal Procedure Code, Section 145-Recording in the final order that it 
was breach of peace is not necessary, once such a recording has been made in 
C 
the preliminary order-Omission to do so is an error of procedure falling with· 
in the domain of a curable irregularity. 
D 
E 
F 
G 
H 
Allowing the appeal by special leave, the Court, 
HELD: (1) A finding of existence of breach of the peace is not necessary 
at the time when a final order is passed nor is there any provision in the Code 
of Criminal Procedure requiring such a finding in· the final order. 
Once a 
preliminary order drawn up by the Magistrate sets out the reaso:is for holding 
that a breach of the peace exists, it is not necessary that the breach of pea~e 
should continue at every stage of the proceeding unless there is clear evidence 
to show that the dispute has ceased tci exist so a:; to bring the case within 
the ambit of sub-section (5) of s. 145 of the Code of Criminal Procedure. 
Un-
less such a contingency arises the proceedings have to be .carried to their logical 
end cnlminating in the final order under sub-s. (6) of s. 145. Further, it is well 
settled that under s. 145 it is for the Magistrate to be satisfied regarding the 
existence of a breach of the peace and once he records his satisfaction in the 
preliminary order, the High Court in revision cannot go into the su!1lciency 
or otherwise of the materials on the basis of which the satisfaction of 
the 
Magistrate is based. [94C-F] 
/ 
R. H. Bhutani v. Miss Mani J. Desai & Ors., [1969] I S.C.R. SO, followed. 
Hari Ram & Ors. v. Banwari Lal & Ors., A.J..R. 1967 Punjab 378; Ramarao 
v. Shivram & Ors., A.LR. 1954 Hyderabad p. 93, approved. 
(2) Mere absence of a finding of the existence of breach of the peace by· 
the Magistrate in the final order in the circumstances of the case cannot be 
such a manifest defect so as to attract the extraordinary jurisdiction of the High 
Court under Section 482 of the Criminal Procedure Code. 
194B] 
(3) At the worst the omission on the part of the Magistrate to mention· 
in his final order that there was breach of the peace could be said to be an 
error of procedure clearly falling within the .domain of a curable irregularity 
which is not sufficient to vitiate the order passed by the Magistrate, particularly 
when there is nothing to show, in the instant case, ithat any prejudice was caused 
to any of the parties who had the full opportunity to produce their evidence 
before the Court. [95B-C] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 474 of 
1980. 
RAJPATI v. BACHAN (Fazal Ali, J.) 
93 
Appeal 
by 
Specia~ Leave 
from 
the 
Judgment 
and Order 
A· 
dated 26-9-1979 of the Allahabad High Court in Cr!. Misc. Case 
No. 356/79. 
f 
Pramod Swarup for the Appellant. 
R. D. Upadhyaya and M. M. L. Srivastava for the Respondent 
No. 1. 
B 
The Judgment of the Court was delivered by 
FAZAL Au, J.-This appeal by special leave involves a short point 
. 
of law. 
Proceedings unde.r s. 145 was started by the Magistrate against 
the respondents on the basis of a police report. 
After passing a 
preliminary order on the 29th July, 1976 (wherein the Magistrate had 
· 
recorded reasons for his being satisfied that a breach of the peace 
existed), the Magistrate called upon the parties to file their written 
statements and then after a full enquiry as provided by s. 145 the 
Magistrate passed the final order on 17th July, 1978 declaring the 
appellant to be in possession of the land in dispute. 
Against this 
order, the respondents moved the High Court under s. 482 Cr.P.C. 
for quashing the order of the Magistrate. 
The High Court found that 
as there was no clear finding by the Magistrate in the final order that 
there was an apprehension of breach of the peace, therefore,' the final 
order was bad and the High Court accordingly allowed the petition 
and remitted the case to the Magistrate. 
...... 
... 
\ 
We have heard counsel for the parties and in our opinion the 
High Court erred in holding that the final order of the Magistrate 
was vitiated in absence of a finding that breach of the peace existed 
at the time the order was passed. 
It is not disputed that in the 
preliminary order there was a clear finding by the Magistrate that 
apprehension of breach of the peace did exist which was sufficient to 
give jurisdiction to the Magistrate to initiate the 

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