1. The learned Sessions Judge has made this reference with a recommendation that the order passed by the first class Magistrate, Udaipur Shri S. C. Das, on 12-9-58 declaring the' possession of the first party Jagadish Chandra Adhikari in proceedings under Section 145 Cri V. C, should be set aside. The said Adhikari filed a petition before the Magistrate on 14-1-1957 stating that he was in possession of 4 kanis of land in Jote No. 65 of Mouja Dhwajnagar on allotment by the Relief and Rehabilitation Department, that he was dispossessed on 9-9-1366 T. E. corresponding to 24-12-1956 by the second party who were very turbulent and that their conduct was likely to lead to a breach of the peace.
The Magistrate took the petition on file on the same date and called for a police report and posted the case to 24-1-1957. On the latter date as no police report was received ho adjourned it further to 12-2-57. No police report was received on the latter date also and so the Magistrate directed the issue of a reminder and posted the case to 21-3-57. No report was received again by 21-3-57 and a fresh reminder was issued and the case was adjourned to 9-4-57. Again on 9-4-57 it was found that in spite of the two reminders no report was received from the Police.
So the matter was adjourned to 27-4-57. The police report was actually received in Court on 10-4-57. It was stated therein that on enquiry it appeared that there was a dispute relating to the land and that breach of the peace was apprehended and that the land in question may be kept under attachment. On 27-4-57 the Magistrate took up the matter and passed the order that he has received the police report stating that there was apprehension of breach of the peace and that proceedings will be drawn up under Section 145 Cri, P.C. and that the land would be kept under attachment.
2. Then notices were issued to both the parties calling for their written statements. The second party took considerable time to file their written statement and at one stage in spite of a last chance being given for filing their written statement on 2-9-57 upto 16-9-57 the second party-was absent and the Court decided to proceed ex parte. At that stage the first party filed a petition that the second party had entered into the attached land and called for an enquiry which was posted to 12-7(9)-1957.
On that date the second party turned up and submitted their written statement. Then the case underwent two adjournments. Again on 20-11-57 the second party was absent. But the matter was adjourned to 11-12-57 and on which date the second party appeared and prayed for issue of summons to witnesses. It would appear that neither party was called upon to file or filed affidavits of persons in support of their respective possession.
The Magistrate proceeded to dispose of the case on the oral evidence of witnesses summoned by both parties. It is seen that on every adjourned date the first party was present with his witnesses. Ultimately the witnesses on both sides were examined and examination of the witnesses was concluded on 1-7-58. Thereafter on 26-7-58 the securely party was again absent.
But as the Court had no time it was posted for arguments to 22-8-58 when arguments were heard and the order of the Magistrate was made on 12-9:58 finding that the first party Jagadish Chandra Adhikari was entitled to possession of the disputed land and forbidding interference by other persons in the disputed land and directing that the first party shall be restored to the possession of the land. Then the second party filed criminal motion before the Sessions Judge and the Sessions Judge has made the reference to this Court that the order should be set aside,
3. Three grounds are mentioned by the Sessions Judge for setting aside the order. It was pointed out that the preliminary order passed by the Magistrate on 27-4-57 did not show that he was satisfied that a dispute relating to possession of land likely to cause a breach of the peace existed and that the Magistrate was merely acting upon the police report without applying his mind to the matter and hence the preliminary order must be treated as having been passed without jurisdiction.
4. Secondly, it. was pointed out that under the amended Section 145 Cri. P.C. which came into force on 1-1-56, the Magistrate was to dispose of the matter on a perusal of the statements, documents and affidavits, if any, put in by the parties, that in the present case no affidavits at all were field by either party, that it was wrong on the part of the Magistrate to have examined witnesses on either side whose affidavits have not been produced, that under the first proviso of Sub-section (4) of Section 145 the Magistrate has the power to summon and examine only persons whose affidavits have been put in and that too as to the facts contained therein and that the procedure of this Magistrate was absolutely unwarranted.
5. A third objection which is the main objection in the case was that the dispossession of the first party was alleged to be on 24-12-1956, that on the application of the first party dated 14-1-57, the Magistrate passed the preliminary order only on 27-4-57, that by that time the first party had been out of possession for more than 2 months and hence under the second proviso of Section 145(4) the first party must be deemed to have been out of possession on the date of the preliminary order and hence the learned Magistrate had no jurisdiction to declare the possession in favour of the first party.
6. With regard to the first objection, I am unable to agree with the Sessions Judge that the Magistrate did not apply his mind before passing the preliminary order. What Section 145 requires is that the Magistrate shall make an order in writing stating the grounds of his being satisfied from a police report or other information that a dispute likely to cause a breach of the peace existed concerning any land. The section does not say that the Magistrate should write in his preliminary order in so many words that he was "satisfied".
It is enough if he mentions the grounds on which he decided to pass the preliminary order. The ground mentioned in his order is that the police report stated that there was apprehension of breach of the peace. The police report showed that there was a dispute concerning the possession of the land and that a breach of the peace was apprehended. It is clear from the order of the Magistrate that on reading the police report he was satisfied that a dispute relating to land likely to cause a breach of the peace existed.
It would no doubt have been better if the Magistrate had stated the grounds clearly in his preliminary order so that such objections are not taken. But I am not prepared to accept the objection raised by the Sessions Judge that the Magistrate has not applied his mind at all and satisfied himself that a dispute relating to land likely to cause a breach of the peace existed. If there is any irregularity in the actual wording, such irregularity would be cured under Section 537 Cri. P.C.
7. Regarding the second objection it is true that the Legislature has amended Section 145 Cri. P.C. with a view to quick and summary disposal of cases coming under that section. Sub-section (4) shows that the Magistrates are expected to dispose of these applications within 2 months from the date of the appearance of the parties before them. But this rule appears to be applied by the Magistrates in this Union Territory more in its breach than in its observance.
I have been sometimes led to think from the matters which come up before me that most of the Magistrates are unaware of this rule of 2 months. In the present case the parties appeared before the Magistrate on 10-8-57. The case was disposed of on 12-9-58 more than a year later. This is highly reprehensible. One. does not understand why the Magistrate did not call upon the parties to file affidavits of persons in support of their claims and why he called upon both parties to cite their witnesses.
Sub-section (1) makes it clear that the Magistrate was to call upon the parties to adduce by putting in affidavits, the evidence of such persons as they rely upon in support of such claims. Sub-section (4) provides that the Magistrate was to peruse the affidavits of such persons. Proviso 1 of Sub-section (4) is to the effect that the Magistrate may, if he so thinks fit, summon and examine any person who affidavit has been put in as to the facts contained therein.
It is clear from this that the Magistrate has erred in his procedure firstly in not calling upon the parties to adduce evidence by putting in affidavits and secondly by calling on the parties to adduce oral evidence of persons in place of affidavits and thirdly by examining persons whose affidavits were not put in, thereby enlarging the scope of their evidence and not confining it to the facts stated in the affidavits.
The question is whether the said irregularity vitiates the entire enquiry. I am not prepared to go that far in the present case. It is clear that both parties have been given the fullest scope by the Magistrate to let in all their evidence without any objection being raised by either party and the Magistrate passed the order after taking into consideration all such evidence. Thus the irregularity and error committed by the Magistrate has not occasioned any failure of justice and it is not necessary that I should interfere in revision on that ground.
8. The third objection raised by the Sessions Judge in his reference is somewhat vital. The forcible dispossession by the second party is alleged to have taken place on 24-12-1956. The application under Section 145 was filed on 14-1-57 i.e. 20 days later. The Magistrate passed the preliminary order under Section 145(1) on 27-4-57 which means more than 4 months after the alleged forcible dispossession. Under Section 143, what the Magistrate has to decide is as to which of the parties was in possession of the land in dispute on the date of the preliminary order passed under Section 145(1).
Admittedly the first party had already been dispossessed even before he came to Court. In cases of such forcible and wrongful dispossession, proviso 2 of Section 145(4) states that if it appeared to the Magistrate that any party was so dispossessed within 2 months next before the date of the preliminary order he may treat the party so dispossessed as if he had been in possession at such date. But that proviso also does not help the first party because he had clearly been dispossessed more than 4 months before the date of the preliminary order.
9. It was argued for the first party that he was not responsible for the delay on the part of the Magistrate in satisfying himself as to whether he should pass a preliminary order, that he should not be put to hardship on account of the dilatoriness of the Court and further that in a case where a party applies to a Magistrate to start proceedings under Section 145 and there was delay on the part of the Magistrate for any reason for which the party was not responsible in deciding to draw up the preliminary order, such preliminary order must be deemed to have been passed on the date of the application by the party. It was pointed out that the application had been made within 20 days of the dispossession and that if the preliminary order relates back to the date of the petition, proviso 2 of Section 145(4) will be satisfied and the party will be deemed to be in possession on the date of the order.
10. The plain language of proviso 2 to Section 145(4) does not help the first party in any way in this argument. There is nothing in the section which would even indicate that the date of the application by a party to the Magistrate has any relevancy whatsoever to the proceedings Under Section 145. There is no Specific provision for any such application. Such applications are usually filed to bring to the notice of the Magistrate that a dispute concerning a land likely to cause a breach of the peace exists and that he should: take action, and they will come under the term "other information" mentioned in Section 145(1).
We are not concerned in such proceeding with the date when the Magistrate gets such information from whatever source it may be and the date of such information has no relevancy whatsoever. The question is whether such information satisfied the Magistrate that he should pass a preliminary order. If he was so satisfied, then he will pass the preliminary order straightaway and it is the date of the preliminary order which really matters.
11. It is clear in the instant case that from the allegations in the application by the first party, the Magistrate was not so satisfied. The Magistrate wanted that there should be a police report evidently to satisfy himself. The police report came only on 10-4-57 and it was dated 9-4-57. What the police report stated was that there was likelihood of a breach of the peace on 9-4-57 and not that there was any such likelihood on the data when the petition was filed by the first party.
It is quite possible that on the date when the petition was filed even though there may have been a dispute concerning land, there was no likelihood of breach of the peace, but that such likelihood arose subsequent to the filing of the petition at or about the time when the police made the enquiry. The fact that, between the date of the filing of the petition on 9-1-1957 and the date of passing of the preliminary order there was really no breach of the peace in spite of the fact that there was no such order again goes to show that there was no danger to peace when the petition was filed.
Thus it is meaningless to say that the preliminary order must be deemed to relate back to the date of the filing of the petition. Proceedings under Section 145 can be said to have commenced only from the date of the preliminary order and never from the date of the police report or from the date when the Magistrate got other information. Thus I am unable to agree with the contention of the first party that the date of the preliminary order must be deemed to relate back to the date of his filing the petition.
12. It follows from this that when a petition is filed informing a Magistrate of a forcible and wrongful dispossession of a party, if the Magistrate is not satisfied within 2 months from the date of such dispossession that he should issue a preliminary order and thus start proceedings under Section 145, the Magistrate has no further jusrisdiction to deal with the petition and he should dismiss it.
It is for the party who informed the Magistrate to satisfy him within 2 months of the date of the dispossession that he should start proceedings by passing a preliminary order and if he is not able to so- satisfy the Magistrate, he cannot claim any further remedy under Section 145. It is no use talking of delay on the part of the Magistrate. The failure is on the part of the party to satisfy the Magistrate.
If the Magistrate is not satisfied with the information contained in the petition and wants a police report to satisfy himself, it is the duty of the party concerned to See that the police report was received by the Magistrate within 2 months of the alleged date of dispossession. The party should impress on the Magistrate that the police report must be obtained within 2 months.
13. Unfortunately the difficulty appears to be that the Magistrates do not keep in their mind the terms of proviso 2 of Section 145(4) and they make no attempt to satisfy themselves within 2 months of such alleged dispossession. Nor do the police keep this provision in mind and they delay their report. It is necessary to impress on the Magistrates and on the police that in such cases it is their duty to expedite matters and to see that a party does not suffer on account of any delay on their part.
14. But the hardship of a party in a particular proceeding cannot weigh with a Court in applying the provisions of law strictly, as pointed out by the Judicial Committee in Nagendra Nath Dey v. Suresh Chandra Dey AIR 1932 PC 165:
The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place land the strict grammatical meaning of the words is the only safe guide.
15. Proviso 2 of Section 145(4) has specifically fixed the period of 2 months before the date of the preliminary order as the period within which to treat the parties dispossessed as having been in possession on the date of the preliminary order, This period is itself a statutory fiction which the Legislature in their wisdom has thought fit to create in order to cover cases of hardship where a party is forcibly dispossessed and he has to have recourse to proceedings under Section
But a Court cannot enlarge the scope of that fiction further by creating another fiction that the date of the preliminary order must be deemed to relate back to the date of the petition by the party. The difficulty is that Courts often find themselves confronted with hardships in individual cases and try to help the party concerned. But law has to be strictly applied and justice can be done only in accordance with law and law cannot be extended to suit individual cases.
The proper thing for the High Court to do when such cases are brought to their notice is to see that officers like Magistrates and police entrusted with the task of administration of law apply the spirit of the law and avoid delay and dilatoriness when expedition is enjoined on them by statute, so that such hardships are avoided in future. It is for the Magistrates to see that in cases coming under proviso 2 of Section 145(4) they enable themselves to decide within 2 months of the date of the forcible and wrongful dispossession whether a preliminary order should be passed under Section 145(1).
16. Various decisions were cited before me for die first party in support of their contention that the date of the preliminary order must be deemed to relate back to the date of the application by the party. It is enough if I cite the later decisions which have considered the earlier decisions. They are Chunchu Narayana v. Karrapati Kesappa , Bhadramma v. Kotam Raj AIR 1955 Hyd 140 and Smt. Subarna Sunami v. Kartika Kudei .
But there is a divergence of judicial opinion on this matter. The decisions cited above have been considered in later decisions of other High Courts as for example, P. Subba Raju v. P. Koneti Raju, (S) Gangadhar Singh v. Shyam Sunder Singh
and they have been expressly dissented from. The
latest decision on the question is the Full Bench decision of the Allahabad High Court Ganga Bux Singh v. Sukhdin in which all the earlier mentioned decisions have been considered and it has been down:
Where a dispossessed person seeks relief under the provisions of Section 145, Cri. P.C. and the Magistrate passes a preliminary order under Section 145(1). Cri. P.C. more than two months after such dispossession, but by his final order under Section 145(6) he puts him in possession, the final-order cannot be deemed to be a valid order on the ground that the Court itself was responsible for this delay and so a party cannot be penalized for the fault committed by the Court. In such a-case the Magistrate is not justified in treating or empowered to treat the party who had been dispossessed more than two months before the actual date of his preliminary order under Section 145(1) Code of Criminal Procedure- as being in possession. on the date of his order under proviso (1) to Sub-section (4) of Section 145 of the Code of Criminal Procedure.
17. The decisions and (S) AIR 1955 Hyd 140 have been expressly dissented from in the said decision, I find myself in-respectful agreement with the said Full Bench decision.
18. There is no doubt therefore that the-Magistrate in the present case had no jurisdiction. on 27-4-57 to pass the preliminary order under. Section 145 more than 2 months after the forcible, dispossession of the first party. The further proceedings of the Magistrate in holding an enquiry to decide as to the possession on the date of the-preliminary order were totally unwarranted as-. the first party cannot by any means be held to have been in possession on the date of the preliminary order in view of the fact that he had already been dispossessed more than 4 months be-fore the date of the said order. The order of the-Magistrate finding the first party to be in possession cannot be allowed to stand. The reference is accepted and the preliminary order of the Magistrate dated 27-4-57 as well as his final order dated 12-9-58 are set aside.