Skip to content


State Vs. Ramjivan Kaluram and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Reference No. 82 of 1960
Judge
Reported inAIR1962Bom8; (1961)63BOMLR570; ILR1961Bom853
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145(1) and 145(4)
AppellantState
RespondentRamjivan Kaluram and anr.
Appellant AdvocateSpecial Government Pleader
Respondent AdvocateD.B. Padhye, ;M.R. Bobde, ;R.A. Saranjame and ;P.G. Palshikar, Advs.
Excerpt:
.....section 145(1) -- whether such order can relate to time or date when magistrate not satisfied on police report or other information as to existence of dispute likely to cause breach of peace -- magistrate whether bound to pass preliminary order immediately on receipt of police report or other information in court.;the preliminary order which a magistrate has to pass under section 145(1) of the criminal procedure code, 1898, relates to the time and date when he is satisfied as to the existence of a dispute likely to cause a breach of the peace, and it cannot relate to any earlier time or date when the magistrate had not yet been so satisfied.;the magistrate is not bound in all cases under section 145 of the code to pass the preliminary order immediately on the receipt of the police..........of the criminal procedure code. by this order he stated that he was satisfied from information and police report that a dispute likely to cause a breach of the peace existed concerning the possession of the field survey no. 16 between the members of party no.1 and party no. 2, and called upon the said parties to attend his court on 14-10-1958 and put in written statements of their respective claims as regards the fact of actual possession of the subject in dispute. this order was passed in the presence of both the parties and their pleaders and the signatures of the parties were taken of its having been duly served upon them.(7) after both the parties filed their statements, documents and affidavits, the sub-divisional magistrate made his decision under sub-section (4) of section 145.....
Judgment:

Datar, J.

(1) This is a reference made by the Additional District Magistrate of Amravati for setting aside the orders passed by the Sub-Divisional Magistrate in a proceeding under Section 145, Criminal Procedure Code, and for remanding the case to the Sub-Divisional Magistrate for passing fresh orders on the basis that the preliminary order, though passed on 1-10-1959, must be deemed to have been passed on 18-7-1958.

(2) A few facts may be stated before we consider the point raised in the reference.

(3) One Ghasiram, who is described as party No. 1, claimed to be the owner of survey No.16 of Shirala. It is his case that this land had fallen to his share in a partition between him and his son Jagannath and he was therefore its exclusive owner. In 1957-58, he leased it to his separated son Jagannath who in his turn gave it to Ramjivan who is described as party No. 2 in these proceedings, on a batai agreement. After the expiry of the lease, Jagannath left the land after the crops were harvested, but Ramjivan did not. Ghasiram accordingly gave a notice to Ramjivan in the first week of December 1957 to quit the land. Ramjivan filed an application on 27-12-1957 for commutation of batai share into cash amount under S. 11 of the Berar Regulation of Agricultural Leases Act. That application was however dismissed for his default on 3-7-1958.

(4) On 17-7-1958 two complaints were made at the police station, Walgaon- one by the 1st party and the other by the 2nd party. On these complaints the police officer made the following report:

'Reported 11.30 O'clock. Field S. No. 16, A. 31, G. 12 of Ghasiram defendant (party No. 1) is at Shirala. The defendant had given that field to the witness Jagannath for the year 1958-59 for cultivation. As Jagannath had given it to the defendant (Party No. 2 Ramjivan) last year on half batar, the defendant No. 2 was cultivating it on half betai. In the first week of December the defendant No. 1 gave a notice to the defendant No. 2 for delivering possession. The defendant No. 2 filed a case in the Court. As the case was dismissed by the Court, the defendant No. 1 taking possession of the field sowed Parhati and Juar. The defendant No. 2 tries to enter into the field for asserting his possession. Hence a complaint u/s 145 is being filed in the Court for decision.'

A formal charge sheet was also sent up to the Court with the report on the dame day. The charge sheet stated:

'That in the first week of December 1957 Ghasiram Rathi gave a notice to Ramjivan that he (Ghasiram) personally would cultivate the field in the next year and that Ramjivan should give up possession after the crop was reaped. Ramjivan did not give a reply to it and submitted an application in the Court for fixing the land revenue (rent) for 10 years. It was fixed for (hearing on) 3-7-1958. The case was dismissed in default of Ramjivan. Ghasiram took possession of that field on 4-7-1958 and sowed cotton and Juar. The complaint is therefore put up in the Court for decision.'

(5) The report and the charge sheet were received by the Court of the Sub-Divisional Magistrate, Amaravati, on 18-7-1958.

(6) On 1-10-1958 the Sub-Divisional Magistrate made an order in writing under sub-section (1) of Section 145 of the Criminal Procedure Code. By this order he stated that he was satisfied from information and police report that a dispute likely to cause a breach of the peace existed concerning the possession of the field survey No. 16 between the members of Party No.1 and Party No. 2, and called upon the said parties to attend his Court on 14-10-1958 and put in written statements of their respective claims as regards the fact of actual possession of the subject in dispute. This order was passed in the presence of both the parties and their pleaders and the signatures of the parties were taken of its having been duly served upon them.

(7) After both the parties filed their statements, documents and affidavits, the Sub-Divisional Magistrate made his decision under sub-section (4) of Section 145 that it was Ghasiram (Party No. 1) who was in actual possession of the survey number at the date of his preliminary order i.e. on 1-10-1958. He observed:

'All the above evidence in spite of the statement and affidavit filed by Ramjivan to the contrary, definitely goes to prove that the non-applicant Ghasiram (Party No. 1) dispossessed the non-applicant Ramjivan (Party No.2) on 4-7-1958 and entered into possession. It thus follows that on the date of the preliminary order and during the period of two moths prior to the date it was non-applicant Ghasiram (Party No. 1) who was in possession of the survey no. In dispute.'

Accordingly, on 19-1-1960 the Sub-Divisional Magistrate issued an order under sub-section (6) of S. 145, declaring Ghasiram to be entitled to possession of the said survey number until evicted therefrom in due course of law.

(8) Ramjivan Party No. 2, filed a revisional application against the order of the Sub-Divisional Magistrate. The Additional District Magistrate, before whom the revisional application came up for hearing, held that the relevant date for passing the preliminary order was 18-7-1958, the date on which the police reports against both the parties were received by the Sub-Divisional Magistrate. The Additional District Magistrate observed:

'On the other hand, it (preliminary order) was passed on 1-10-1958 i.e. 2 months after the relevant date 18-7-1958 in the present cases. This delay in passing the pre order has naturally resulted in failure of justice inasmuch as it has shifted the relevant period of determining the question of possession under Section 145. The relevant date for passing the preliminary order must at least be held to be 18-7-1958 the date on which the police report was available to the Magistrate and not two months thereafter.'

Accordingly the Additional District Magistrate has made the reference to this Court with a recommendation that the orders of the Sub-Divisional Magistrate, dated 19-1-1960 be set aside and the cases remanded to that Court for passing fresh orders with reference to the relevant date, namely, 18-7-1958.

(9) The learned Additional District Magistrate is of the opinion that the preliminary order under Section 145(1) of the Criminal Procedure Code ought to have been passed by the Sub-Divisional Magistrate on 18-7-1958 the day on which the police reports against both the parties were received in his Court. Therefore, the learned Additional District Magistrate thinks there was delay in passing the preliminary order and this delay resulted in failure of justice.

(10) The learned Additional District Magistrate relied upon a decision reported in Chunchu Narayan v. Karrapati Kesappa, : AIR1951Mad500 . In that case it was held that the Legislature did not intend that any time should lapse between the presentation of the petition and the passing of the preliminary order if the Magistrate was satisfied. It was observed:

'One should follow immediately the other. The satisfaction of the Magistrate before passing the preliminary order can be based either on the police report or other information. At that time he has no jurisdiction to enquire into the matter and find out about the truth or otherwise of the police report or other information. So the Magistrate is not justified in delaying the passing of the preliminary order if the police report or other information is sufficient to satisfy him that a dispute likely to cause a breach of peace existed. If the Magistrate is not justified in taking time to pass a preliminary order, then even if the time mentioned in the order is of subsequent date, it should be deemed to have been passed immediately after receipt of the police report or other information. It is in such circumstances that the well known maxim 'actus curiae neminem gravabit,' an act of the Court shall prejudice no man, has to be applied.'

(11) The learned Judges in that case applied the legal fiction 'nunc pro tunc' and held that the preliminary order should be deemed to have been passed when the Magistrate took cognizance of the matter and satisfied himself about the urgency, that is to say, on 15-10-1949 when the petition was filed before the Magistrate under Section 145 (and not on 25-1-1950 when the preliminary order was actually passed). This view was differed from in a recent Full Bench decision reported in Ganga Bux Singh v. Sukhdin, : AIR1959All141 . The Full Bench held that where a person seeks relief under the provisions of Section 145, Criminal Procedure Code, and the Magistrate passes a preliminary order under S. 145(1) more than two months after such dispossession but by his final order under S. 145(6) he puts him in possession, the final order cannot be deemed to be valid order on the ground that the Court itself was responsible for the delay and so a party cannot be penalised for the fault committed by the Court. In such a case the Magistrate is not justified in treating or empowered to that the party who had been dispossessed more than two months before the actual date of his preliminary order under Section 145 as being in possession on the date of his order under proviso (1) (present proviso (2) to sub-section (4) of Section 145, Criminal Procedure Code.

(12) With respect, we are in agreement with the view expressed by the Full Bench of the Allahabad High Court.

(13) Section 145, Criminal Procedure Code so far as it is relevant for our purpose, may be set out herein below.

'(1) Whenever . . . . . . . a Sub-Divisional 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 . . .. . . . he shall made an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such a dispute to attend his Court. . . . . . and put in written statements of their respective claims as respects the fact of actual possession and further requiring them to put in such documents or to adduce, by putting affidavits, the evidence of such persons, as they rely upon in support of such claims.

* * * * * * *

(4) The Magistrate shall then without reference to the merits of the claims of any such parties to a right to possess the subject in dispute peruse the statements, documents and affidavits, if any so put in, hear the parties and conclude the inquiry, as far as may be practicable within a period of two months from the date of the appearance of the parties before him, and if possible decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

* * * * * * *

Provided further that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly or wrongfully dispossessed, he may treat the party so dispossessed if he had been in possession at such date.

* * * * * * *

(6) If the Magistrate decides that one of the parties was or should under the second proviso to sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until eviction and when he proceeds under the second proviso to sub-section (4), he may restore to possession the party forcibly and wrongfully dispossessed.'

(14) It will be seen from the provisions of sub-section (1) of section 145 that it is only when and after the Magistrate is satisfied that a dispute likely to cause a breach of the peace exists that he will have the jurisdiction of entertaining proceedings under Section 145, Criminal Procedure Code, and making the preliminary order under the said sub-section. The opening words of the sub-section are 'Whenever, . . . . .. a Sub-Divisional magistrate is satisfied.' If the preliminary order is to be passed only after the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace, it must necessarily refer to the time and date when the Magistrate is so satisfied and cannot relate to any earlier time or date when the magistrate had not yet been so satisfied. Even after the police report is sent to the Magistrate the Magistrate may require other information before he feels satisfied that a dispute likely to cause a breach of the peace exist and passes a preliminary order in that behalf. It cannot obviously be expected that the Magistrate is bound in all cases to pass the preliminary order immediately on the receipt of the police report or other information in his Court. He may in conceivable cases require some more information before he is satisfied as to the likelihood of a breach of the peace. Indeed, in the instant case, it appears that the magistrate was not apparently satisfied merely from the police report that there existed a dispute likely to cause a breach of the peace and accordingly immediately on the receipt of the police report (Charge sheet) be directed that summonses be issued to both the parties to appear before him on 28-8-1958. The case was called before the Court on 23-8-1958. On that day it was found that the parties were absent and that the summonses issued on the earlier date had not been served. Accordingly the learned Magistrate directed fresh summonses to be issued to the parties to appear before him on 15-9-1958. It appears that party No. 2 (Ramjivan) was served with the summons before 15-9-1958. On 2-9-1958, party No. 2 made an application to the Magistrate praying that the preliminary order under sub-section (1) of Section 145, Criminal Procedure Code, be passed immediately or at any rate before 4-9-1958. In this application it is not stated that there was a dispute between the parties likely to cause a breach of the peace. In this application it was mentioned that in the police report it was clearly stated that Ramjivan (Party No. 2) was dispossessed and Ghasiram (Party No. 1) took possession of the land in dispute on 4-7-1958 and that if the preliminary order was passed before 4-9-1958 the case of Ramjivan was likely to be prejudiced, resulting in miscarriage of justice. It is not clear whether this application was passed at all and if so pressed, why no orders were passed as asked for in it. On 15-9-1958 Party No. 2 Ramjivan made another application stating for the first time before the Magistrate that a dispute likely to cause a breach of the peace existed concerning field No. 16 and that he had done the summer operations and had sown the field on 19-6-1958 and that Party No. 1 and his son were disturbing his possession. He asked for the attachment of the field and for the appointment of a receiver. It may be noted that in his application he did not make any reference to his earlier application of 2-9-1958. It appears that as the Magistrate was proceeding on tour on 15-9-1958 he directed that the application be put up on the next date.

(15) The next adjourned date was 1-10-1958. On that day (as the order sheets show) both the parties were present. In their presence the preliminary order was passed by the Magistrate on that day. The learned Magistrate also stated that he would pass his orders on party No. 2's application dated 15-9-1958 on the next date. It seems that even on 1-10-1958 when the preliminary order was passed no complaint was made before the Magistrate about the application dated 2-9-1958. At the time of the final hearing of the proceeding also it does not appear that any point was made before the Magistrate about the said application.

(16) Thus from the evidence on record in this case it cannot be said that the learned Magistrate could have satisfied himself on any date earlier than on 1-10-1958 that a dispute likely to cause a breach of the peace existed. For various reasons therefore it may not be possible for the Magistrate in all cases under Section 145, Criminal Procedure Code, to satisfy himself immediately on the receipt of the police report, that a dispute likely to cause a breach of the peace existed. As was observed by Mr. Justice A. N. Mulla in the Full Bench case referred to above, it is the preliminary order alone that indicates the time when the necessary satisfaction was reached by the Magistrate.

'It is begging the question if it is argued that the satisfaction was reached much earlier, but the preliminary order was delayed. I see no reason for coming to the conclusion that the Magistrate had reached a subjective satisfaction very much earlier than the time when he passed the preliminary order. It is not for another Court to determine when the Magistrate should have been subjectively satisfied. It is a matter which rests entirely with the Magistrate and if for some reason such as lack of suitable independent information or absence of confirmation by a police report the Magistrate is not willing to accept the allegation made by the complainant that there is imminent danger of a breach of the public peace, it cannot be said that the Magistrate delayed coming to this conclusion and any fault was committed by him.'

(17) It may be noted that in the present case the police report and the charge shee which we have mentioned above did not even state there was a dispute between the parties likely to cause a breach of the peace. Under these circumstances we cannot find fault with the Magistrate if he required some more information before he could satisfy himself that there really existed a dispute likely to cause a breach of the peace. Therefore, it seems to us that if the jurisdiction of the magistrate to initiate proceedings under S. 145, Criminal Procedure Code, depends upon his satisfaction, such jurisdiction will have been conferred upon him only when he has the satisfaction as to the existence of the dispute and not before.

(18) In the Madras case, having held that the Magistrate was not justified in taking time to pass a preliminary order, the learned Judges applied the maxims 'actus curiae neminem gravabit' (an act of the Court shall prejudice no man) and 'nunc pro tunc' (now for then) and held that even if the time mentioned in the order was of a subsequent date it should be deemed to have been passed immediately after the receipt of the police report or the other information.

(19) In Broom's Legal Maxims, 10th edition, at page 73 the maxim 'actus curiae neminem gravabit' is explained as follow:

'An act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a sage and certain guide for the administration of the law. In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay but should be allowed to enter up his judgment retrospectively to meet the justice of the case.'

(20) In 'Judicial and Statutory Definitions of Words and Phrases', Volume V, at page 4868, the meaning of the expression 'nunc pro tunc' is given as follows:

'The phrase 'nunc pro tunc' signifies 'now for then', or that a thing is done now that shall have the same legal force and effect as if done at the time it ought to have been done. A court may order an act done nunc pro tunc when it, or some one of its immediate ministerial officers, has done some act which for some reason has not been entered of record or otherwise noted at the time the order or judgment was made or should have been made to appear on the papers or proceedings by the Ministerial officer.'

(21) WE have already stated that it is not possible to lay down as a proposition of law that the preliminary order should in all cases immediately follow the receipt of the police report or the other information in the Magistrate's Court. Even after the receipt of the police report or the other information in his Court, there may in conceivable cases inevitably elapse some time before the Magistrate makes up his mind and satisfies himself that a dispute likely to cause a breach of the peace exists so as to justify the passing of the preliminary order under sub-section (1) of Section 145 of the Criminal Procedure Code. That some time elapsed between the receipt of the police report or the other information and the passing of the preliminary order cannot therefore be necessarily attributed to delay on the part of the Court or to its fault; and on the facts of the present case as we have already shown above, it would not be possible to hold that the delay was due to any fault or laches on the part of the Magistrate. It is conceded by Mr. Padhye that if the delay cannot be attributed to any fault or laches on the part of the Magistrate, there is no scope for the application of either of the two maxims which were relied upon the Madras case referred to above.

(22) Besides, we do not see how the maxims aforesaid can come into play when the language of the section is clear and unambiguous. Sub-sec (4) of Section 145, Criminal Procedure Code, and proviso 2 thereto expressly refer to preliminary order mentioned and to be passed in writing in accordance with the provisions of sub-section (1). In Broom's Legal Maxims, 10th edition, page 92, it is stated that

'if there is a particular hardship from the particular circumstances of the case, nothing can be more dangerous or mischievous than upon those particular circumstances to deviate from a general rule of law.'

We are of the view that when words of the section are plain, a Court of law cannot refuse to give them their natural meaning only because of a possibility of hardship or injustice in a particular case.

(23) Crawford in his statutory Constitution (1940) par 177 says that

'if the language is plain and susceptible to only one possible meaning or construction that construction should be accepted without regard to the result or effect of such acceptance. In other words an undesirable effect cannot change the meaning of the language which is plain, for the legislative intent must be found in latter rather in the former.'

(24) Thus it would be seen that where the language of the section clearly expresses the intention of the legislature it must be given effect to regardless of the consequences and the Court cannot consider the fact that such effect causes hardship or inconvenience in some cases.

(25) Accordingly, for the reasons stated above we reject the reference and confirm the order of the Sub-Divisional Magistrate.

(26) Reference rejected.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //