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Tolan Kalita and ors. Vs. Bhuban Chandra - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantTolan Kalita and ors.
RespondentBhuban Chandra
Excerpt:
.....4 months after the date of the petition, or, in other words, about 4 months after the date of the dispossession complained of. the opposite parties moved the learned sessions judge and he has recommended, reversal of the order on the very obvious legal, ground. the delay on the part of the police should be no reason for declining relief to the respondent who came to court well within time. the learned judge preferred to place a reasonable interpretation as against the literal interpretation which, if placed in the circumstances of the case before him, would have defeated the object of section 145 (4). 9. the two madras cases were considered in emperor v. 13. in this view, the order of the learned magistrate declaring bhuban sarma to be entitled to possession must be quashed as..........the order was also not sustainable on-facts.5. it is undisputed that the complaint was based on dispossession though the date of dispossession was not disclosed. but as the grievance is dispossession, it must have taken place before the application was actually put in. even if dispossession had taken place on the very date of the application, viz., the 20th february 1950, the order in question would seem to be illegal. whenever a magistrate is satisfied from a police report or other information that a dispute likely to cause a breach, of the peace exists concerning any land or water or the boundaries thereof, within the local limits of. his jurisdiction, he has to make an order in writing,, stating the grounds of his being so satisfied and, requiring the parties concerned in such.....
Judgment:

Ram Labhaya, J.

1. This is a reference under Section 438, Cr. P.C., from the Sessions Judge, U.A.D, The reference arises out of a proceeding under Section 145 of the Code of Criminal Procedure,

2. On the 20th February 1950, Bhuban Chandra Sarma applied to the Magistrate for redress under Section 145, Cr. P.C. alleging that he had been dispossessed from his land by Tulan Kalita and others and that the dispute was likely to lead to a breach of the peace. The learned Magistrate sent the application to the Police for inquiry and report. The police report was not received till the 6th June 1950. A preliminary order was drawn up on the 21st June 1950. By this order the parties were asked to state their respective cases as provided in Clause (1) of Section 145 of the Cr. P.C.

3. The learned Magistrate found that Bhuban Chandra Sarma had been dispossessed as alleged and was entitled to possession of the land. His order based on this finding was passed on the 13th December 1950.

4. The learned Sessions Judge has pointed out that the order is in contravention of the express provision contained in Clause (4) of Section 145, Cr. P.C., and is, therefore, liable to reversal. In his view the order was also not sustainable on-facts.

5. It is undisputed that the complaint was based on dispossession though the date of dispossession was not disclosed. But as the grievance is dispossession, it must have taken place before the application was actually put in. Even if dispossession had taken place on the very date of the application, viz., the 20th February 1950, the order in question would seem to be illegal. Whenever a Magistrate is satisfied from a police report or other information that a dispute likely to cause a breach, of the peace exists concerning any land or water or the boundaries thereof, within the local limits of. his jurisdiction, he has to make an order in writing,, stating the grounds of his being so satisfied and, requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put. in written statements of their respective claims in regard to the fact of actual possession of the subject of dispute.

6. In this case the preliminary order under Section 145 (1) was passed on the 21st June 1950. It was about 4 months after the date of the petition, or, in other words, about 4 months after the date of the dispossession complained of. The: learned Magistrate then held an inquiry-contemplated by Section 145, 01. (4). Clause (4) requires the Magistrate to decide after necessary-inquiry as laid down therein whether any and, which of the parties was on the -date of the order in possession of the subject-matter. Under the proviso to this Clause, if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the' date of the preliminary order, he may treat, the parties so dispossessed as if he had been in possession on such date. In this case it was obvious that dispossession had taken place 4 months before the order and that Tolan Kalita and others were in possession on the date of the order. As dispossession of Bhuban Sarma did not take place-within two months before the date of the preliminary order, the proviso could not help him and he could not be regarded as the person in possession, on the date of the preliminary order. No order, therefore, could have been passed in favour of Bhuban Sarma, in the circumstances of the case,, if the provisions contained in Section 145 are construed strictly. The order, however, was passed, in his favour. The opposite parties moved the learned Sessions Judge and he has recommended, reversal of the order on the very obvious legal, ground.

7. It must be noted, however, that if the provisions contained in Section 145 (4) are given, effect to Bhuban Sarma, now respondent, would be deprived of his remedy under Section 145 without any fault on his part. The police took 4 months, to report on his application. The result was that on the date the report was received, the dispossession was 4 months old. It has been urged on his behalf by Mr. Lahiri that the law surely did not contemplate such a possibility. The delay on the part of the police should be no reason for declining relief to the respondent who came to Court well within time. He urged that nobody should suffer by an act of the Court or its officers. He has relied on 'Krishnan Raju v. Swami Naidu' AIR (14) 1927 Mad 816, and 'Lenka Pollpillai v. Karim Ammanna' 52 Mad 66.

8. In AIR (14) 1927 Mad 816, Wallace, J., observed that he was not prepared to subscribe to the proposition that a party taking possession by force must be retained in possession if, owing to delay after the dispossessed party has asked the Court to take action, on the part of the Court, taking action, over two months have elapsed before the Court finally makes up its mind to issue a preliminary order. He, therefore, declined to interfere in favour of the party who had taken forcible possession of the property. This view was followed in 52 Mad 66. Devadoss, J., held that if •on an application made to a Magistrate under Section 145, Cr. P.C., by a person complaining of dispossession, the Magistrate is not able to pass a preliminary order within 2 months of dispossession without any fault on the part of the applicant, the party complaining should not on a proper construction of the first proviso to Clause (4) of Section 145 be made to suffer by reason of such delay on the part of the Magistrate and he is entitled to an order under the section. The learned Judge preferred to place a reasonable interpretation as against the literal interpretation which, if placed in the circumstances of the case before him, would have defeated the object of Section 145 (4).

9. The two Madras cases were considered in Emperor v. Sunder Lal' AIR (23) 1936 Nag 271. Grover, J., relying on two previous cases of is Court, held that there was no provision of law allowing for extension of the period of two months laid down in the proviso to Section 145 (4) Cr. P.C. whatever the cause of delay may be. The proviso to Section 145 (4) also, it was pointed out, was only permissive and not a mandatory one. The Magistrate may treat the party forcibly and wrongfully dispossessed within two months as if he had been in possession. The order is to be made with reference to possession on the date of the preliminary order.

10. The Nagpur view has also prevailed in 'Mahomed Beg v. Ehsan Beg' AIR (28) 1941 Oudh 515, 'Meharban Singh v. Bhola Singh AIR (22) 1935 All 35; and 'Mahomed Ali v. Shamsul Haq' AIR (30) 1943 Sind 33.

11. The Madras High Court has also in a recent case reported in 1945 Mad 216, disagreed with the view taken in '52 Mad 66' and held that a person dispossessed can be treated as in possession on the date of the preliminary order only if he had been dispossessed within two months of that date.

12. The language of Clause (4) is quite clear. The inquiry is to be directed to finding out possession on the date of the preliminary order. The only exception to this rule is that of dispossession, within 2 months from the date of the order. The language used in Clause (4) being plain, there is no difficulty of construction. On a strict construction of the section, no order can be passed in favour of the party who was dispossessed even though forcibly and wrongfully but more than two months before the date of the order. If delay is caused by the act of the Court, as in this case, even then the express provision contained in Clause (4) cannot be disregarded. The inherent powers of the Court to do Justice cannot be exercised in disregard of the express provision contained in the Code. If the complainant suffers by a strict construction of the Statute, it is an unfortunate result but it cannot be helped. The possibility of an anomalous situation arising from the language used in Clause (4) and its proviso is a matter for the consideration of the Legislature. Courts have to give effect to the law as they find it. We, therefore, find ourselves in full agreement with the view that has found favour in the Courts at Allahabad, Nagpur, Oudh and Sind and also in the recent case of the Madras High Court.

13. In this view, the order of the learned Magistrate declaring Bhuban Sarma to be entitled to possession must be quashed as recommended by the learned Sessions Judge. We accept the recommendation and order accordingly.

Thadani, C.J.

14. I agree.


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