1. Respondent No. 1 Dr. S. S. Katdare, filed an application, purporting to be an application under the provisions of Section 145 of the Cr.P.C., against the present applicant. Dr. P. K. Antia, on December 17, 1980 and it was registered as Application No. 4/N/81 of 1980 on the file of the Additional Chief Metropolitan 23rd Magistrate's Court, Bombay. I am told that after this application was filed by Dr. Katdare, a show cause notice was issued to Dr. Antia, who appeared in court and filed a reply on February 9, 1981. The learned trial Magistrate proceeded to pass a preliminary order under the provisions of sub-section (1) of Section 145 of the Cr.P.C. on February 25, 1981, having to material other than the averments in the application of Dr. Katdare and the reply filed by Dr. Antia. It is this preliminary order, annexed to the petition as Ex.'C' that is being challenged in this petition by the original respondent, Dr. P. K. Antia.
2. Before enumerating the challenge to the impugned preliminary order, it will be necessary to briefly refer to the facts alleged by the original applicant, Dr. Katdare. According to him, in July 1954, he, along with Dr. M. D. Deshmukh, Dr. M. M. Wagle and his wife Dr. (Mrs.) Jayanti Wagle and Dr. D. V. Doshi, negotiated with the Cricket Club of India Ltd. for leasing their premises, being Shop No. 2 on the 2nd floor of Stadium House. Churchgate, Bombay, for starting their respective medical practices. The entire premises consist of five chambers and one common hall and one common toilet. The common hall was used by all the doctors for accommodating waiting patients. Out of the five chambers. Which could be used for the medical practice, one remained vacant, because Dr. Katdare, Dr. Wagle along with his wife, Dr. Deshmukh and Dr. Doshi occupied one chamber each. The fifth vacant chamber was adjacent to the chamber allotted to Dr. Katdare was the biggest of all the five chambers. Dr. Katdare got the biggest chamber because being a radiologist, it was necessary for him to fix the X-ray machine in his chamber. It is this chamber which was originally allotted to Dr. Katdare that forms the subject-matter of this dispute. Dr. Katdare fitted his X-ray machine in the biggest chamber after securing 440 Volts A.C. current power line in his own name at his own costs. He also got fitted three phase to one phase transformer, automatic circuit breakers and a developing desk. All these facts are stated in paras 1 to 3 of the application filed by Dr. Katdare and according to the written statement filed by Dr. Antia, the contents of paras 1 to 3 are substantially correct. In November 1954, Dr. Antia, who is the friend of Dr. Deshmukh, was inducted in the spare room, adjoining the room of Dr. Deshmukh which was vacant. He did not become a lessee along with the original five lessee inclusive of Dr. (Mrs.) Wagle, but he started contributing towards the rent and the maintenance charges by depositing various amounts in the account of 'Churchgate New Clinic.' Dr. Katdare did active practice in the disputed from July 1954 to April,1976. Prior to April 1976, Dr. Katdare suffered a mild heart attack in April, 1974 and suffered detachment of retina in April, 1975. He decided to go out of India for taking rest. His son Dr. Suhas S. Katdare and his daughter-in-law Dr.(Mrs.) Asha S. Katdare were practising in Australia at the relevant time and, therefore, before going out of India, Dr. Katdare decided to dispose of the X-ray machine and Short wave Diathermy apparatus. Dr. M. D. Deshmukh and Dr. P. K. Antia together purchased the X-ray machine for Rs. 30,000/-. Each of them contributing in equal share. On purchase of the X-ray Machine, Dr. Deshmukh suggested to Dr. Katdare that he should be allowed to use the bigger chamber since it was that room which was supplied with 440 Volts A.C. Current and removing the X-ray machine and fixing it in some other room would cost at least Rs. 10,000/-. It is alleged by Dr. Katdare in his application under Section 145 of the Criminal P.C. that there was an explicit under standing that Dr. Deshmukh would remove the X-ray machine and cease to use the disputed chamber on return of Dr. Katdare from Australia or on return of his son Dr. Suhas Katdare or his daughter-in-law Dr. (Mrs.) Asha Katdare. Dr. Deshmukh was to pay compensation for the use of the room equal to the amount of the lease money that was payable by Dr. Katdare for the bigger chamber. The Short Wave Diathermy apparatus was not sold and, therefore, Dr. Deshmukh was told to sell it in due course and to pay the amount to the original applicant's daughter Mrs. Kirti Kharkar, w/o Capt. Kharkar.
3. It is further alleged that in the first week of August 1980, Dr. Katdare wrote to Dr. Deshmukh that he was coming back to Bombay before the end of October 1980. After his return to India, that is, on October 21, 1980, when Dr. Katdare went to the disputed bigger chamber with his son-in-law Capt. Kharkar, he found that his name plate on the ground floor of the building was removed, that his name and his son's name from the Churchgate New Clinic Board were deleted and that his painted name on the door of his premises was erased and instead the name of the respondent, Dr. P. K. Antia, was put on the Board. It is further alleged that the belongings of Dr. Katdare mentioned in Exs. 'A' and 'B' were also absent from the said chamber. Dr. Deshmukh was not in that chamber and, therefore, Dr. Katdare met Dr. Antia in the evening and made inquiries as to how he had taken possession of the chamber in question. He was told that Dr. Antia presumed that he was not coming back and, therefore, took possession of the chamber in question. It is further alleged that Dr. Antia told Dr. Katdare that he would not vacate the premises and hand over possession and would not allow Dr. Katdare to enter the disputed chamber, According to Dr. Katdare on receipt of his letter in August 1980 that he was coming to India in October 1980. Dr. Deshmukh asked Dr. Antia to shift to his own room and thereafter Dr. Antia shifted from the room of Dr. Deshmukh and occupied the bigger chamber which was being used by Dr. Deshmukh during the absence of Dr. Katdare from India. It is alleged that Dr. Antia occupied the bigger chamber in spite of the disapproval of Dr. Deshmukh. It is further alleged that Dr. Antia told Dr. Katdare that he was even ready to take the law in his own hands and was not worried even if there was any breach of peace or showdown. In the circumstances, Dr. Katdare alleged in his application under S. 145 of the Criminal P.C. that if he went to his chamber to protect his rights in respect of the said chamber, he apprehended that Dr. Antia would indulge in violence leading to breach of peace.
4. As against this, the allegation of the original respondent, Dr. Antia is that Dr. Katdare left India for good and had no intention to return back and while leaving India, he removed all his articles from the premises in question, i.e. the bigger chamber, and that there was a meeting of all the doctors occupying the clinic and it was mutually agreed by all of them, including Dr. Katdare, that the chamber belonging to Dr. Katdare should be transferred to Dr. Antia, who was in need of space. According to him, Dr. Katdare agreed to transfer possession of the bigger chamber to Dr. Antia on the condition that his X-ray machine and the other furniture and fixtures lying in the room were purchased by Dr. Antia for an amount of Rs. 30,000/-. Since Dr. Antia was in need of premises, he agreed to pay an amount of Rs. 30,000/- though the machine and the furniture and fixtures would not have fetched that much amount. While filing his written statement, Dr. Antia took a preliminary objection to the maintainability of the proceedings under S. 145 of the Cr.P.C. According to him, the original applicant, Dr. Katdare, had stated in his application that on October 21, 1980, When he went to the premises in question, he learned that he was dispossessed by the original respondent and, therefore, it was obvious that he was dispossessed some time prior to October 21, 1980. Dr. Katdare had not stated in his application as to the exact date on which he was dispossessed. In the absence of an allegation by Dr. Katdare that he was in possession of the bigger chamber at any time within two months of the filing of his application, the Court had no jurisdiction to pass a preliminary order. The application under S. 145 of the Cr.P.C. was filed on December 17, 1980, though in the preliminary order dated February 25, 1981 it had been stated by the learned Metropolitan Magistrate that it was filed on January 8, 1981.
5. After hearing the parties, the preliminary order was passed on February 25, 1981 by the learned Metropolitan Magistrate after holding that the preliminary objection was not sustainable because it was not possible to decide it unless the parties were allowed to lead evidence. The question as to whether the case of the original applicant was covered by the proviso to sub-section (4) of S. 145 of the Cr.P.C. or not was also a question which, in the opinion of the learned Metropolitan Magistrate, could be decided only after recording evidence. It is this finding and the passing of the preliminary order which are being challenged before me in this criminal application by the original respondent, Dr. Antia.
6. Mr. H. H. Ponda, the learned Counsel for the present applicant (Dr. Antia), submitted that Dr. Katdare had not even alleged that he was dispossessed within two months prior to December 17, 1980, i.e., the date on which the application under S. 145 of the Cr.P.C. was presented by him in the Court of the Metropolitan Magistrate, Bombay. What he had alleged is that he came to know on October 21, 1980 that he was dispossessed. He has nowhere alleged that he was dispossessed on a particular date which was within two months prior to December 17, 1980. According to the learned Counsel, there as no possibility of dispossession during the period October 21, 1980 to December 17, 1980 in view of the averments of Dr. Katdare contained in paras. 9 and 11 of his original application. These allegation pertain to the despatch of a letter by him in August 1980 to Dr. Deshmukh informing him that he was coming to India in October 1980, and the further avernment that 'It appears that the Respondent thereupon shifted from the room of the said Dr. M. D. Deshmukh and occupied the applicant's room which was being used by the said M. D. Deshmukh'. According to the learned Counsel for the present applicant Dr. Antia, if the original applicant moving the Court under the provisions of S. 145 of the Cr.P.C. chooses to keep the question of his alleged dispossession vague, the Court cannot have jurisdiction to pass a preliminary order. Besides this argument, it was also submitted that on the showing of the original applicant Dr. Katdare himself, the alleged dispossession was not forcible and what the proviso to sub-sec. (4) of S. 145 of the Cr.P.C. contemplates is the forcible and wrongful dispossession. It was necessary not only to establish that dispossession was wrongful, but it was also necessary not only to establish in addition, that dispossession was forcible. It was urged that unless the criminal force as defined in S. 350 of the Penal Code, was used, dispossession cannot become forcible. The third submission advanced on behalf of the present applicant Dr. Antia was that though it was true that the subjective satisfaction of the Magistrate that a dispute likely to cause a breach of the peace existed concerning any and was not liable to be interfered with in exercise of the power of revision as held by the Supreme Court in R. H. Bhutani v. Mani J. Desai : 1969CriLJ13 the subjective satisfaction could not be based merely on an allegation by an applicant that if he goes to the disputed premises, there will be a breach of the peace. It was submitted that this was a case in which the act of dispossession was complete at least on October 21, 1980 and, therefore, the learned Magistrate could not have come to the conclusion that the dispute likely to cause a breach of the peace existed merely on the allegation of Dr. Katdare that if he would go the chamber in question there was likelihood of breach of the peace.
7. After going through the application under S. 145 of the Criminal P.C. made by Dr. Katdare and registered as Application No. 4/N/81 of 1980, it must be said that it is difficult to find from the contents of this application that Dr. Katdare has made a definite and a specific statement relating to the date of his dispossession. Mr. M. B. Chitre, the learned Counsel appearing for respondent No. 1 Dr. Katdare, submitted that the allegation made at the end of para 10 of the original application viz. :-
'The Applicant says that it came to his knowledge of 21st October 1980 that he was dispossessed from his chamber which was in his exclusive possession and that the Respondent has criminally trespassed upon the same.' amounted to an allegation of dispossession on October 21, 1980 itself in view of the portion underlined. It was also submitted that taking the allegation contained in the application as a whole, it must be said that Dr. Katdare was disposed on October 21, 1980. Alternatively, the learned Counsel submitted that the question as to the date on which Dr. Katdare was dispossessed would become relevant only under the proviso to sub-section (4) of S. 145 of the Cr.P.C. and the said proviso does not operate until evidence has been recorded by the Magistrate, sub-section (4) provides :-
'(4) The Magistrate shall then, without reference to the merits or the claims of nay or the parties to a right to posses the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, 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 made by him under sub-section (1) in possession of the subject of While so deciding under sub-section (4), after evidence has been recorded, a legal fiction was created by the proviso and under the said legal fiction, a party forcibly and wrongfully dispossessed within two months next before the date of a report of a police officer or an application under S. 145 of the Cr.P.C. to the Court was to be treated as a party who was in possession on the date of the preliminary order. That being so, the question of the date of dispossession was irrelevant at the time of the passing of the preliminary order.
8. Broadly speaking, cases under S. 145 of the Cr.P.C. can be of two types. The first type is in which each party claims to be in possession on the date of the preliminary order and even thereafter. The second type of cases are those in which a party approaching the Court admits that it has been dispossessed. In the second type of cases a party approaching the Court may allege a specific date of dispossession or, as in the present case, may not allege a specific date of the dispossession. If the date of dispossession, as alleged by an applicant is the date which is within two months before the date of the filing of the application, an objection as is raised in the present application, relating to the validity of the preliminary order cannot arise. The question is as to what should happen in those cases in which the date of dispossession, as alleged by the applicant moving the Court of the Magistrate under S. 145 of the Cr.P.C., is a date which is beyond the period of two months prior to the filing of the application or the giving of a report to the police and also in those cases in which the statement relating to dispossession is left vague without specifically indicating the date of dispossession. During the course of the arguments. I had posed a question to the learned Counsel for respondent No. 1 that in a given case if the applicant comes to the Court of a Magistrate with an application under S. 145 of the Cr.P.C. alleging therein that he was dispossessed by the respondent two years prior to the filing of the application, would the Magistrate have the jurisdiction under S. 145(1) of the Cr.P.C. to pass a preliminary order The answer given by the learned Counsel for respondent No. 1 Dr. Katdare was that in such a case the learned Magistrate would have jurisdiction to pass a preliminary order. The question as to whether the legal fiction created by the proviso to sub-section (4) of S. 145 of the Cr.P.C. would be available to such an applicant or not would be decided only at the end of the trial and after evidence has been recorded. It is extremely difficult to accept such a submission. Though it is true that the example taken by me in the query is an extreme case and it is quite unlikely that the applicant who approaches the Court of a Magistrate with an application under S. 145 of the Cr.P.C. would say that he was dispossessed from the disputed land two years prior to the date of his application, such extreme example can, in many cases constitute a good pointer for testing the logic of the given proposition. Though it is true that S. 145(1) of the Cr.P.C. speaks of a report of a police officer or information stating (i) that a dispute concerning any land or water exists and (ii) that dispute is likely to cause a breach of the peace as the only two conditions to enable the Magistrate to exercise his jurisdiction for passing a preliminary order, it is not possible to imagine that the Magistrate could pass a preliminary order even in a case similar to the example quoted above. My attention was invited to the decision of a Division Bench of this Court in Criminal Revn, Appln. No. 1018 of 1973, decided on October 17, 1974 : (1977-79 Bom LR 16) by Hajarnavis and Aggarwal, JJ. for the proposition that the existence of a dispute concerning and immovable property and the likelihood of a breach of the peace were the only two jurisdictional facts which need exist before the Magistrate could get jurisdiction to pass a preliminary order under sub-sec.(1) of S. 145 of the Cr.P.C. The relevant portion of the judgment which is contained in para 10 is as under :-
'The section contemplates that (1) there should be a dispute, (2) relating to (possession) of land, water etc. and that (3) the dispute was likely to cause a breach of the peace.
Magistrate gets jurisdiction to intervene whenever he is 'satisfied' about the existence of these three facts. He shall, then, pass an order under sub-section (1) of S. 145 of the Cr.P.C.'
In the case of Krishna Kamini v. Abdul Jubbar ILR (1903) Cal 155 Hill J., whose judgment was concurred by the majority of the Full Bench of the Calcutta High Court, observed :-
'The essentials are that there should be a dispute likely to cause a breach of the peace, and that the dispute should concern land, etc. The section does not primarily contemplate cases in which there have already been overt acts of violence. All the disputan's may be persons of peaceable disposition, but the dispute is in its nature of such a kind that it is likely, having regard to the known conditions of society, to lead to a breach of the peace that is enough to warrant the Magistrate's intervention and to give him jurisdiction over the subject of dispute. Upon the existence of those conditions and those conditions only, is the jurisdiction of the Magistrate in my opinion dependent.'
This aspect of the existence of two conditions alone as jurisdictional facts clothing the Court concerned with jurisdiction to pass a preliminary order was also approved in the case of Parmesan Singh v. Kailaspati AIR 1916 Pat 292 : 17 Cri LJ 369 by the Full Bench of the Patna High Court. Similar observations are to be found in the case of M.P. State v. Premlal AIR 1957 Nag. 27 : and they are to the effect At p. 213 of Cri LJ:-
'The only two essential conditions, which confer jurisdiction upon a Magistrate under S. 145, are firstly that there should be a dispute over land or water and secondly that such a dispute should be likely to cause breach of the peace.'
According to me, the Court of the Magistrate will certainly have jurisdiction to pass a preliminary order under S. 145(1) of the Criminal P.C. the moment it is satisfied that a dispute concerning immovable property exists and that it was likely to lead to a breach of the peace. It must, however, be mentioned that in none of the decisions referred to above, the question as posed by the learned Counsel for petitioner Dr. P. K. Antia was present before the various Courts. None of these Courts was called upon to decide as to whether the elements of the proviso to sub-section (4) of S. 145 of the Criminal P.C. have to be read into sub-section (1) thereof and as to whether the Court of the Magistrate will have no jurisdiction in those cases in which the applicants themselves allege that they were dispossessed, say for example, two years prior to the date on which they were moving applications. The mentions of the only two conditions of a dispute relating to immovable property and the likelihood of causing a breach of the peace in sub-section (1) of S. 145 of the Cr.P.C. as pre-conditions for exercise of jurisdiction of passing a preliminary order by the Court of the Magistrate and the submission that the Court of the Magistrate cannot have jurisdiction to pass a preliminary order in those cases in which applicants themselves state that they were dispossessed more than two months prior to the date of the making of their applications can be reconciled only if an attempt to ascertain the meaning of the word 'dispute' is made. Ordinarily, the dispute as contemplated by S. 145 of the Cr.P.C. is a dispute in which party A and party B both claim to be in possession on the date when they make an application to Court and on the date on which a preliminary order is passed. This is the dispute which is contemplated by S. 145 of the Cr.P.C. The party, which has been forcibly and wrongfully dispossessed within two months prior to the date of the making of a report to the police or of making an application under S. 145 to the Court of the Magistrate has been given the advantage by a legal fiction contained in the proviso to sub-section (4) of being treated as if it was in possession on the date on which preliminary order was passed and therefore, a dispute as contemplated by sub-section (1) of S. 145 of the Cr.P.C. can never be a dispute between party A and party B, where party A coming to Court itself claims that it was dispossessed two years prior to the making of an application. It is, therefore, not necessary to say that what is contemplated by the proviso to sub-section (4) of S. 145 of the Cr.P.C. is itself a jurisdictional fact, but without saying so, there cannot be a dispute, as contemplated by S. 145 of the Cr.P.C. in which, on the allegation of the applicant himself, he has been dispossessed more than two months prior to the date of the making of a report or filing of the application.
9. On the facts of the present case, as unfolded by the averments in the application under S. 145 of the Cr.P.C. made by Dr. Katdare, I do not find that it can be said that he has come out with a case that he was dispossessed prior to October 21, 1980, as submitted by Mr. Ponda on behalf of Dr. Antia with the half of the averments contained in paras. 9 and 11 of the original application, but at the same time I do find that he is correct in saying that the original applicant, Dr. Katdare, has not definitely or specifically stated the data of his alleged dispossession. The statement in that behalf is vague and I do not agree with the contention of Mr. Chitre, the learned Counsel appearing for Dr. Katdare, that the end portion of para 10 of the application referred to earlier in this judgment makes out a case of dispossession on October 21, 1980 itself. Reading the averments in the original application under S. 145 of the Criminal P.C. in their totality, it appears that the case of Dr. Katdare is that he was in possession of the disputed chamber through his licensee Dr. Deshmukh and he came to know about his dispossession by Dr. Antia for the first time on October 21, 1980. The application does not state, however, as to when the alleged licensee, Dr. Deshmukh, in contravention of the terms of the licence, illegally placed Dr. Antia in possession of the disputed chamber. The question, therefore, that will have to be decided in the present case would be as to whether the absence of allegations, making out a positive case of wrongful and forcible dispossession within two months prior to the date of the filing of the application under S. 145 of the Cr.P.C. can have the effect of taking away the jurisdiction of the Magistrate, who has reason to believe that the dispute relating to immovable property exists and the dispute is likely to lead to a breach of the peace. The effect of a positive assertion by the party moving the Court of the Magistrate under S. 145 of the Code that he was dispossessed on a day or at a time which is definitely more than two months prior to the date of his giving report to the police or making an application to the Court is that the dispute does not remain a dispute contemplated by S. 145 of the Cr.P.C. because it becomes an admitted position that the opposite party was in possession on the date of the preliminary order as well as for more than two months prior to the filing of the report to the police or presenting an application by the applicant. However, in a case similar to the case which is before me, the absence of a denote statement as to the date on which the applicant was dispossessed cannot be said to be a factor which takes the dispute out of the scope of the dispute contemplated by S. 145 of the Cr.P.C. and, therefore, I do not think that the present case is a case in which it can be said that the Magistrate had no jurisdiction to pass the impugned preliminary order. One does not know as to what will be the final picture after evidence is recorded and the possibility of the applicant getting the advantage of the proviso to sub-section (4) of S. 145 of the Cr.P.C. cannot be ruled out. It is true that if it was possible to come to a conclusion by reading the averments contained in the application filed by Dr. Katdare that he was dispossessed definitely more than two months prior to the date of the filing of the application under S. 145 of the Cr.P.C. on December 17, 1980. I would have held that the learned Metropolitan Magistrate had no jurisdiction to pass the preliminary order because the dispute in that case would have been a dispute which could not fall within the four corners of S. 145 of the Cr.P.C.
10. Going to the second submission advanced on behalf of Dr. Antia, the present applicant, that respondent No. 1 Dr. Katdare had not alleged that the was 'forcibly' dispossessed though he might have alleged that he was wrongfully dispossessed, I feel that the word 'forcibly' used in the proviso to sub-section (4) of S. 145 of the Cr.P.C. cannot be given a restricted meaning of dispossession accompanied by the use of criminal force as defined is S. 350 of the Penal Code. The words 'forcible entry' have been defined by Ballentine's Law Dictionary, 3rd Edition, at page 480 to mean as under :-
'An entry on real property peaceably in the possession of another, against his will, without authority of law, by actual force, or with such an array of force and apparent intent to employ it for the purpose of overcoming resistance, that the occupant, in yielding and permitting possession to be taken from him, must be regarded as acting from a well founded apprehension that resistance by him would be perilous or unavailing.' I feel that the word 'forcibly' used in the proviso to sub-sec. (4) of S. 145 of the Cr.P.C. will have to be given such a similar and wider meaning so as not to restrict it only to those forcible entries in which criminal force, as defined in S. 350 of the Penal Code, is used by the person who obtains wrongful possession. Mr. Ponda invited my attention to the decision of a Division Bench of the Calcutta High Court in Sitanath Saha Bhowmic v. A. Harvey AIR 1921 Cal 553. In that case, respondent Harvey was dispossessed of his land in his absence by about 30 persons who came to the disputed land with implements which could be used for offensive as well as for peaceful purpose and erected a fencing thereon. Since respondent Harvey was absent, the question of the use of criminal force, as defined by S. 350 of the Penal Code, could not have arisen. It was contended that the use of actual force or violence was necessary before the dispossession of respondent Harvey could be called forcible. White rejecting this contention, the Division Bench observed :-'Nor in our opinion is it necessary that actual force or violence should have been used to some person or persons before a dispossession can be said to be 'forcible'. When the dispossession is effected by a show of criminal force sufficient as in this case to intimidate those in possession and to deter them from resistance the latter, in our opinion, may well be said to have been forcibly dispossessed.'
It was urged on behalf of Dr. Antia that a show of criminal force was at least necessary for making dispossession 'forcible'. I do not think that that is the ration of the above decision. A limited submission that was made in the case before the Calcutta High Court on behalf of the petitioner was that the dispossession was not forcible because actual force or violence was not used. This submission has been clearly negatived.
11. Reliance was also placed on the decision of the Patna High Court in the case of H. V. Low & Co. Ltd. v. Mahindra Chandra : AIR1925Pat33 : 26 Cri LJ 268. That was a case in which the Managing Agents, H. V. Low & Co. Ltd., were removed from the colliery after about four years, though their term was for 20 years, by announcing to the staff at the colliery that H. V. Low & Co. Ltd. were no longer the Managing Agents. It was argued in that case:
'Even if they were wrongfully dispossessed, it is clear that they were not forcibly dispossessed and the first proviso to sub-sec. (4) of S. 145 requires that the dispossession should be forcible and wrongful.'
The subsequent part of the judgment shows that the above question, which was raised during the arguments, was never decided and the case was decided on some other point.
12. My attention has been invited to the decision of a Division Bench of the Madras High Court in Amritlal N. Shah v. Nageshwara Rao. AIR 1947 Mad 133 : 48 Cri LJ 435 by the learned Counsel appearing for Dr. Katdare. In that case it has been observed :-
'It is not in all cases that actual force should be used to make an eviction a forcible one. Misrepresentation and improper threats are sufficient to constitute forcible dispossession.'
In that case, the petitioner was in possession of building through his servants and he was dispossessed by the opposite party by obtaining a notice from the District Magistrate on incorrect information and by making the servants vacate the building by showing the notice to them. The question was whether the dispossession was forcible or not and it was in that connection that the above referred observations were made. I am in agreement with these observations and, as observed by me, the word 'forcibly' cannot be given restricted meaning.
13. The third submission on behalf of the present applicant, Dr. Antia was that the subjective satisfaction of the learned Metropolitan Magistrate about the likelihood of causing a breach of the peace in the present case was liable to be examined in spite of the observations of the Supreme Court in R. H. Bhutani v. Mani J. Desai : 1969CriLJ13 . The relevant observations, as contained in para 9 of the judgment of the Supreme Court, are as follows :-
'The satisfaction under sub-section (1) is of the Magistrate. The question whether on the materials before him, he should imitate 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 sufficiency of material for his satisfaction. The language of the 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.'
It was submitted on behalf of Dr. Antia that in that case the applicant was at least examined on oath, while in the present case the applicant has not been examined on oath. It was pointed out by Mr. Chitre on behalf of Dr. Katdare that two cases, one under the provisions of S. 145 of the Cr.P.C. and another for offence of trespass and other offences in connection with the same incident, were filed in the same Court and Dr. Katdare was examined in the connected case on oath and, therefore, the learned Metropolitan Magistrate did not think it necessary to examine him again in the proceedings under S. 145 of the Cr.P.C. This statement is not disputed on behalf of Dr. Antia, but what is submitted is that the statement on oath does not form part of the record of the proceedings under S. 145 of the Cr.P.C. I do not think that the absence of the statement on oath of Dr. Katdare in the proceedings under S. 145 of the Cr.P.C. by itself would be a factor to come to a conclusion that the learned Metropolitan Magistrate had no grounds to come to the conclusion that there was likelihood of causing a breach of the peace. Another submission in this behalf, which was advanced by Mr. Ponda on behalf of Dr. Antia, was again based on certain observations in the case of H. V. Low & Co. Ltd. v. Mahindra Chandra (1925) Cri LJ 268 referred to above, Adami, J. delivering the judgment for the Division Bench of the Patna High Court held :-
'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 counter affidavits sworn by Messers Lyall and Adamson as well as the explanation submitted by the Additional Deputy Commissioner show that beyond the fact that Military police were sent to a police station near the colliery, there was no show of force which would lead the petitioners to apprehend any violence, and it is explained by the Additional Deputy Commissioner that the Military Police were sent to the police Station only in case the petitioners might resort to violence. It was in fact unlikely that firm like of Messers H. V. Low and Co. would continuance the use of force.'
The observations referred to above pertain to the facts of that particular case and I do not think that they lay down the law in terms of the opening sentence of the observations. If that was so it would be difficult to imagine a case of a party, admittedly dispossessed wrongfully and forcibly and approaching the Court of the Magistrate under S. 145 of the Cr.P.C. obtaining a preliminary order under S. 145 because in such a case there could never be a breach of the peace unless the party dispossessed goes to the disputed land to assert its right to possess. To accept such an argument would certainly amount to putting a premium on the wrongful act of the opposite party by saying that the party dispossessed need not go to the disputed premises and if it goes and there is likelihood of causing a breach of the peace, it cannot be taken into account for passing an order under S. 145 of the Cr.P.C.
14. Some arguments were advanced on the question as to whether the words 'actual possession' used in sub-section (1) of S. 145 of the Cr.P.C. contemplated actual possession which is constructive or they do not contemplated constructive possession and contemplate only 'actual physical possession '. It is no doubt true that there are conflicting decisions on this question by various Courts and the parties were not able to cite any decision either of this Court or of the Supreme Court of India on this question, but I do not find it necessary to decide this question in the present case in view of the submission advanced on behalf of Dr. Antia by Mr. Ponda that he did not want to dispute that the constructive possession of a party could also be taken into account for the purpose of S. 145 of the Cr.P.C. and that his main contention was that the original applicant, Dr. Katdare, had failed even to allege constructive possession within two months prior to the date on which be filed his application before the learned Metropolitan Magistrate.
15. The result, therefore, is that the application fails and is dismissed and the Rule is discharged.
16. Rule discharged.