1. This is a reference by the learned Sessions Judge of Sambalpur recommending that the Magistrate's order declaring first party's possession in a proceeding under Section 145 of the Cr PC should be set aside. He characterises the Magistrate's order as one without jurisdiction. Mr. G.B Mohanty appears for the second party and in support of the reference.
2. The short facts are that the first party, a woman, filed an application on 24-6-1948 in which she said that she had been dispossessed from her land, the subject-matter of the present dispute, on 13-6-1948. After she submitted the petition asking for starting a proceeding under S. 145, there was a great delay in completing the necessary enquiry by the Police and in drawing up the preliminary order calling upon the respective parties to appear and file statements as to their respective claims to possession. The preliminary order, contemplated in the section, was passed on 6-10-48. The learned Magistrate came to a finding that the first party was in possession till dispossessed. The relevant paragraph of the trial Magistrate's order reads as follows:
“The first party was forcibly dispossessed of the disputed estate on 13-6-48. The proceeding was initiated on 6-10-48. But the first party moved the S.D.M, Bargarh, on 24-6-48. In this case preliminary order has been passed after expiry of two months from the date of dispossession. For the delay caused in the Magistrate Court, the first party should not be deprived of the benefit of the Section 145 of the Cr PC on principle of equity and justice.
“Under such circumstances I am satisfied that the first party was in actual possession of the disputed plots before she was forcibly dispossessed by the second party and there was likelihood of breach of the peace due to the said dispute.
“I therefore order that the first party is entitled to possession of A. 12, 11D of disputed land until evicted therefrom in due course of law……”
3. The finding is recorded in very clear and lucid terms. Mr. M.S Rao, appearing for the first party (opp. party), contends that the Magistrate is in error in holding that the first party was ousted from possession. He would interpret the evidence of the first party's witnesses including the first party herself as amounting to disturbance in possession but not dispossession. I have read that petition dated 24-6-48 filed by the first party in which she makes a clear admission that she has been dispossessed since 13-6-1948. No doubt, in finding that there was delay in the initiation of the proceeding, she filed a second application in which she spoke in terms of disturbance of possession. Her evidence, however, in Court, is clear in which she says “for fear of being murdered I did never go upon the land”. The evidence of P.W 2 has been referred to at the bar. But in the face of first party's own admission, P.W 2 shall not be allowed to improve upon her case. Particularly in view of the clear finding on which the reference is based. I am not inclined to interfere with the finding of fact.
4. The next question arises whether notwithstanding the clear expression of law in the proviso to sub-sec. (4) of S. 145, the Magistrate would exercise his discretion in the ends of justice to declare first party in possession. This declaration amounts to hold it as a legal axiom sanctioned by the statute that the party forcibly and wrongfully dispossessed shall be deemed to be continuing in possession however long thereafter the preliminary order initiating the proceeding under S. 145 be passed. In my judgment, if this view be taken as the Law, the Magistrate would be invested with a jurisdiction, which, pre-eminently within the scope and object of the section, he has not got. To restore a party from dispossession to possession is the exclusive jurisdiction of the Civil Court. The Magistrate has no jurisdiction to decide the question of title or even the question of right to possess for the time being. Sub-Sec. (4) reads:
“The Magistrate shall then, without reference to the merits of the claims of any such parties ‘to a right to’ possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them respectively, consider the effects of such evidence, take such further evidence (if any) as he thinks necessary, and, if possible, decide whether any and which of the parties was at the date of ‘the order before mentioned’ in such possession of the said subject”.
5. “Such possession” means “actual physical possession as distinguished from constructive possession.” The proviso, added to the sub-section, in other words, tantamounts to say that the constructive possession of one, who has been wrongfully dispossessed within 2 months next preceding the date of the order within the meaning of the section, may, at the discretion of the Magistrate, be considered to be in continuance of his previous actual physical possession. The proviso is discretionary and the discretion is limited by the express words, namely, that it shall not be exercised in a case where the dispossession forcibly and wrongfully effected has lasted for more than two months next before the order. A volume can be said in favour of stretching the period of two months to whatsoever length that might have lapsed due to the laches of the Court. Before dealing with the conflicting decisions on the point cited by the learned counsel of both parties, X would, for the sake of having the correct principle of law before me, refer to a decision of the Patna High Court in a Division Bench case of ‘H.V Low & Co. Ltd. v. Manindra Chandra’, 3 Pat 809. This decision lays down that in all cases of forcible and wrongful dispossession, the Magistrate is not authorised to start a proceeding under Section 145 of the Cr PC. If the dispossession is a completed act and if there is no further apprehension of breach of the peace unless the party dispossessed again comes to take forcible possession of the property, a proceeding under the section shall not be drawn up. I will quote a passage from the judgment of Adami, J. who delivered the leading judgment of the Court:
“Furthermore from the petition it is clear that a breach of the peace is likely only if the petitioners seek to enter the Colliery and to enforce their claim………The remedy of the petitioners lies in the Civil Court.”
6. Under the circumstances, the Magistrate, to my mind, will be acting completely beyond his jurisdiction in raising a dispute when there is none, and intiating a proceeding under Section 145 of the Cr PC. This matter is of fundamental importance from another aspect of the question, namely, that the Magistrate has no jurisdiction to start a proceeding of possessory character like the one under S. 145 unless he is satisfied that there is likelihood of breach of the peace. In a case where a party has been dispossessed for more than 5 or S. months before the Magistrate applies his mind to it and if he finds (an aspect of the case to which he himself applies his mind) that since after dispossession or aneged disturbance of possession there has been no apprehension of breach of the peace and one party, however wrongly and forcefully, has settled himself down in possession of the property, he should not draw up a proceeding under S. 145. Keeping these considerations in view, the Legislature has fixed the maximum period, within which the party wrongfully dispossessed can get the benefit of the section, at two months. For a Court, for whatever reason and howsoever laudable in its object, it is not permitted to legislate by reading into the proviso and extending the period of two months to any period which according to the Court, lapses due to the negligence or the dilatoriness of the Magistrate. If the Court is permitted to do so then, in all fairness to the Court, it must be found against him that the delay was due to his laches. That the Legislature fixed two months was certainly in consideration of the circumstances that after a complaint of dispossession is made, some sort of preliminary investigation, so as to bring it home to the satisfaction of the Magistrate that there is likelihood of breach of the peace over a dispute as to possession of immovable property will have to be made. As I have already said, without that the Magistrate has no jurisdiction to call upon the parties to appear before him in a matter which is mostly of a civil nature. The moment, the apprehension of breach of the peace is absent, the matter is purely civil in nature over which the Magistrate has no jurisdiction. Under the circumstances, I cannot accede, with all respects to the learned judges who have decided the case in ‘Chenchu Narayana v. K. Kesappa’, (1951) 1 Mad L Jour 102, to the proposition laid down by them. These very learned Judges have said that the Magistrate must have either the police report or some other information before him to satisfy him that there is likelihood of breach of the peace. Under the circumstances, what will be the starting point from which the period of two months will be counted. It cannot be the date when a private party complains or when the police report is submitted. Neither of the documents is binding upon the Magistrate. His act in passing a preliminary order is a judicial act. No doubt, it is a matter of his satisfaction and once he says that the dispute relating to possession of the immovable property is one which should be taken cognisance of under S. 145, no superior Court should ordinarily interfere with it. But that does not make his act any the less judicial. If that is so, in applying the principle laid down by their Lordships of the Madras High Court, you should always be aware of the position that the Magistrate after being satisfied that the dispute was one in relation to which there was likelihood of breach of the peace delays in drawing up the necessary preliminary order. Where is the offence of any laches on the part of the Magistrate? Sometimes the parties do file petitions having absolutely no basis but for the sake of creating evidence, complaining disturbance in possession, or interference with possession from time to time, while all the time the other side was peaceful in possession and they have had no claim to possess after which they come forward to take possession of the land forcibly and thereby make a show of breach of the peace. Can it be said that, howsoever long a time that lapses between the first petition or Station Diary entry and the date of the preliminary order, the possession will be considered to be continuing as his? In the very judgment of their Lordships of the Madras High Court, there are circumstances which strengthen me in my view dissenting from them though with very great respect. They have referred to the previous history of the Code of Criminal Procedure and pointed out that in the Codes of 1861 and 1882, the sections analogous to the present section 145 were resepctively Ss. 318 and 530. In none of these sections, a provision like the one enacted in the proviso to Sub-Sec. (4) of the present Code had been enacted. In two cases of the Calcutta High court, this defect was pointed out and the injustice that was being done to the parties who were dispossessed in one case 15 days before the order and in another a few months was exposed. It is said that the present Code was enacted having those deficiencies in view and to mend them. That the proviso has been so enacted as to make it discretionary with the Magistrate to consider a dispossessed man in actual possession provided the dispossession is within two months make it clear that the Legislature is not even definite that they should do so in all cases of dispossession. According to the proviso, a particular Magistrate can say, the first party or the second party, as the case may be, has been dispossessed within two months of my order, but in view of the consideration of the previous acts of possession and the respective rights of the parties I do not consider that he should be declared to be in possession of the property for a large number of years, say, for more than 12 years. Under some circumstances, which can be more easily conceived than described, he is dispossessed for three months. Thereafter, he comes and dispossesses the trespasser. The trespasser comes to the Criminal Court and wants to make out a case for Magistrate's intervention under S. 145. In the case of such a person, the Magistrate may exercise his discretion and say that in consideration of the fact that he was himself a trespasser and acquired possession by an act of trespass and maintained it for a short period he has been rightly dispossessed by the rightful owner and should not get the benefit of the proviso in his discretion now that dispossession is a settled fact. In view of the proviso and its express provision, clear wording and definite object, such an order cannot be ruled out as illegal. Therefore, this is all the more reasonable why the time limit provided for by the statute must always be respected. It would not amount to perpetuating an injustice in the sense that the man loses the property once for all. The result of S. 145 proceeding is simply to decide which party to go to the Civil Court for vindication of his right and possession. Under the circumstances, I do not think I shall be justified in falling in line with the decision of the Madras High Court, already referred to. In support of the contrary view, a large number of decisions of other High Courts are available. I have read them, considered them and I do not propose to deal with them individually. I shall only mention them for reference. They are ‘Meharban Singh v. Bhola Singh’, 57 All 488, Emperor v. Parashram’, AIR (18) 1931 Nag. 38, ‘Mahomed Ali v. Shamshul Haq’, AIR (27) 1940 Sind 33, Emperor v. Baijnath’, 5 Luck 440 and ‘Arunachala Goundan v. Chinna Durai’, 46 Cri L Jour 767 (Mad).
7. I owe a few words to the Learned Magistrate who seems to have been led, or, to speak more correctly, misled by the two decisions of Patna High Court. With regard to the one of the decisions, namely, the one reported in ‘Dhun Mun Singh v. Baleshwar Prasad Singh’, AIR (20) 1933 Pat 601 (2). Mr. Justice Rowland, in the particular circumstances of that case, refused to lay down any law on the subject, but said, as a Court of Revision, he had to do, by substituting his own order, that substantial justice which had been refused. Such a course was quite open to the learned Judges of the Madras High Court. Our revisional jurisdiction is discretionary too, particularly because, the parties before us have other remedies open to them. With regard to the other, decision of the Patna High Court ‘Gobardhan Das v. Suresh Chandra’, AIR (29) 1942 Pat 489, Mr. Justice Dhavle is very clear that this period may be extended to more than two months in case where prohibitory orders preventing both the parties to come upon the land have been passed, and in continuation of that order preliminary order under S. 145 has been initiated. He has made it further clear that the prohibitory order under S. 144 of the Code must have been passed with a view to initiate a proceeding under S. 1415. For such a proposition there is guarantee in the law, namely, that when the Court takes up the property into its control, the possession of the man from whom it is taken continues. But however I should also reserve my opinion with regard to the correctness of that view. But at any rate that view has got this advantage that it will never exceed more than two months, because the period for an order under S. 145 is two months in maximum. Naturally in all such cases, the preliminary order must come and that, at the latest, on the very last day the prohibitive order under S. 144 is due to expire.
8. In the premises aforesaid, I accept the reference and set aside the order of the Magistrate.
K.S
9. Order set aside.