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Kamapati Venkat Ramiah Vs. Challapalli Sitharamiah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 383 of 1958 and Case Referred No. 63 of 1958
Judge
Reported inAIR1961AP208; 1961CriLJ612
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145 and 145(4)
AppellantKamapati Venkat Ramiah
RespondentChallapalli Sitharamiah
Appellant AdvocateAddl. Public Prosecutor
Respondent AdvocateS. Venkatreddy and ;M. Ramiah, Advs.
Excerpt:
.....section 145 of criminal procedure code, 1898 - issue whether under section 145 (4) crucial date is date of preliminary order or date of petition - date of preliminary order not to be related to date of petition - held, crucial date is date of preliminary order. - - ?' 2. for a better appreciation of the point involved in this reference, a few facts may now be stated. - 145: (1) whenever a district magistrate, sub-divisional magistrate or magistrate of the first class 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 shall make an order in writing, stating the grounds of his being so satisfied, and requiring the..........'whether under the second proviso to sub-section (4) of section 145 cr. p. c. is the crucial date the date of the preliminary order or the date of the petition, by virtue of the fiction that the preliminary order relates back to the date of the petition under sub-section (1) of section 145, cri. p. c.?' 2. for a better appreciation of the point involved in this reference, a few facts may now be stated. on a petition under section 145 cr. p. c. being presented on 29-4-1957, the addl. first class magistrate no. 1 guntur called for a report on 1-5-1957 from the station house officer, tadepalli, as to whether there was any dispute which was likely to cause a breach of the peace. a report was received on 30-7-1957, whereupon the magistrate passed a preliminary order on 10-8-1957.....
Judgment:

P. Chandra Reddy, C.J.

1. This reference has been occasioned by two conflicting judgments, one of a Bench of the Madras High Court in Chunchu Narayana v. Karrapati Kesappa, : AIR1951Mad500 (a judgment of the year 1950) and the other of this Court in Subba Raju v. Koneti Raju : AIR1955AP99 , which declined to follow the former Bench decision. Our learned brother Basi Reddi J., having regard to the Full Bench decision of this Court in Subbarayudu v. State, : AIR1955AP87 which ruled that the decisions of the Madras High Court rendered prior to 5th July 1954 were binding on the High Court of Andhra and that where a Division Bench of the Andhra High Court was inclined to take a view different from that of a Division Bench of the Madras High Court of equal strength, the case should be referred to a Full Bench, referred this matter to a Bench for being referred to a Full Bench. The following question has been referred by the Bench (of which one of us was a party):

'Whether under the second proviso to Sub-section (4) of Section 145 Cr. P. C. is the Crucial date the date of the preliminary order or the date of the petition, by virtue of the fiction that the preliminary order relates back to the date of the petition under Sub-section (1) of Section 145, Cri. P. C.?'

2. For a better appreciation of the point involved in this reference, a few facts may now be stated. On a petition under Section 145 Cr. P. C. being presented on 29-4-1957, the Addl. First Class Magistrate No. 1 Guntur called for a report on 1-5-1957 from the Station House Officer, Tadepalli, as to whether there was any dispute which was likely to cause a breach of the peace. A report was received on 30-7-1957, whereupon the Magistrate passed a preliminary order on 10-8-1957 requiring both the parties to put in written statements of their claims in respect of the actual possession of the land and to file documents and adduce evidence in support of their cases.

After an enquiry, the Magistrate held that the petitioner was dispossessed in April 1957 and therefore he was hot in possession within two months from the date of the preliminary order. In this view, he declared the respondent's possession. Against this order, a revision was filed before the Sessions Judge, Guntur who while expressing the view that as the delay was due to the proceedings of the Court, the party could not be made to suffer on the principle 'actus Curias neminem grava-bit' referred the matter to the High Court under Section 438 Cr. P. C. having regard to the conflict between the Madras and Andhra decisions.

3. Inasmuch as there has been a divergence of views on the question referred to us, we wouldprefer in the first instance to scrutinise and consider the language of the section uninfluenced by any case law. The relevant portions of Section 145 Cr. P. C. are as under:-

'145: (1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class 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 shall 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 as respect the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims.

(2) xxx xxx xxx (3) xxx xxx xxx (4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject, of 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:

xxx xxx xxx 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 and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date:

Provided also that, if the Magistrate considers the case one of emergency, he may at any time attach the subject of dispute, pending his decision under this section.

(5) xxx xxx xxx (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 the due course of law and forbidding all disturbances of such possession until such eviction and when he proceeds under the second proviso to Sub-section (4) may restore to possession the party forcibly and wrongfully dispossesed. (7) xxx xxx xxx (8) xxx xxx xxx (9) xxx xxx xxx (10) xxx xxx xxx'

This section is as amended by Criminal Procedure Amendment Act XXVI of 1955 and the only material amendment (except that in Sub-section (1) which provided for requiring the parties to put in such documents, or to adduce, by putting in affidavits the evidence of such persons, as they rely upon in support of such claims) is the substitution of the present Sub-section (4) for the previous one. The change made in that Sub-section is consequent on the policy of the legislature to permit evidence by affidavits which has authorised the Magistrate to peruse the documents and affidavits and enjoined him to conclude the enquiry, as far as may be practicable, within a period of two months from the date of the appearance of the parties before him.

The first proviso which is a new one shows that the Magistrate may, if he thinks fit, summon and examine any person whose affidavit has been put-in as to the facts contained therein. Provisos 2 and 3 are the same as provisos 1 and 2 of the previous Sub-section . There is thus no change in the material content of the section as to render the decisions of the Courts prior to the amendment on this aspect of the case, inapplicable.

4. It may be stated that Section 145 authorises the Magistrate to pass police order to prevent breaches of the peace. All that the Magistrate is required to decide is 'the fact of actual possession of the subject of dispute' without reference to the merits or the claims of any of such parties to a right to possess the subject of dispute. These words-exclude a right to possession. It may also be noticed that under Sub-section (1), the jurisdiction of the Magistrate need not be invoked by a petition by any of the parties to the dispute.

It is sufficient if the Magistrate is satisfied from a police report or any other information which need not necessarily be by a petition or application, that there is a dispute likely to cause a breach of the peace. He can make a preliminary order in writing stating the grounds of his being so satisfied, and requiring the parties concerned to appear before him. The enquiry which he is required to hold under Sub-section (4) is to determine as to which of the parties was in actual possession of the subject-matter of dispute on the date of the preliminary order made under Sub-section (X).

Under the second proviso, if it is shown that one of the parties was forcibly and wrongfully dispossessed within two months prior to the date of the passing of the preliminary order, he is to be treated as if he has been in possession on the date of the preliminary order. Sub-section (6) authorises the Magistrate to issue orders declaring the party who is or should be in actual possession thereof until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.

It further authorises him in the case of a party who has been wrongfully dispossessed within two months from the date of the preliminary order to restore his possession. It is thus seen that not only the object of the provision is to prevent breach of the place pending settlement of the dispute in a Civil Court by declaring and maintaining actual possession of the party in possession on the date of the preliminary order; but also by reason of the fiction created by the second proviso to Sub-section (4) to restore the possession of the person who was unlawfully and wrongfully dispossessed within two months from the date of the preliminary order.

The specific period of two months has been fixed by the statute arbitrarily. But for the proviso, the enquiry would be limited to ascertainment of the fact of possession on the date of the preliminary order. The unambiguous intention of the legislature as expressed by the clear and specific terms docs not ex facie admit of any scope for interpretation empowering the Magistrate to cover a period extending beyond the said two months by the addition of any other legal fiction. It may be recounted that originally there was no such, provision as that embodied in the second proviso in the Code of 1861 or of 1872 or that of 1882.

This proviso was first enacted in 1898, probably as a consequence of the position taken by the Calcutta decisions in the Matter of the Petition of Mohesh Chunder Khan, ILR 4 Cal 417 and Katras Jherriah Coal Co. v. Sibkrishta Daw and Co., ILR 22 Cal 297 to the effect that it was impossible to lay down any hard and fast rule which may be applicable to all cases as to the exact point of time to which an enquiry under Section 145 must be directed and the time at which possession must be found in one party or the other must be governed by each particular case. In view of this, a legal fiction was enacted to make a party who was not in possession on the date of the presentation of the petition or the preliminary order, to be in possession within two months from the preliminary order and on that basis to restore him to his possession.

When the language of the statute is clear, unambiguous and in express terms, then all that is required is to expound these words in their natural and ordinary sense, unless in doing so, some absurdity or some repugnance or inconsistency with the rest of the provisions or statute would result, in which case it will be permissible to modify the construction for avoiding that absurdity and nothing more.

5. A plain reading of the provisions of the section in the natural and ordinary sense creates no difficulty in interpreting the intention of the Legislature which is that a person who has been unlawfully dispossessed within two months from the date of the preliminary order can be restored to possession. This construction neither leads to absurdity nor results in inconsistency. On the other hand, it declares the intention of the law givers to protect all those persons who have been dispossessed during a period which has been arbitrarily fixed at two months with the full consciousness of the implications.

It is not as if the Legislature was setting out to provide a machinery for declaring the right of the party or the right to possession which is left exclusively to the province of the Civil Courts as indeed where the right of the party has been declared otherwise by the Civil Court or where it is difficult for the Court to come to a conclusion as to which of the parties was in possession, the Legislature has authorised under Section 146 to refer the matter to the Civil Court. The declaration of possession of one if the parties and the maintenance of such possession is only for the limited (though very important) purpose of avoiding breaches of the peace.

It matters little which of the party is declared to be in possession, as long as one of them could be declared to be in possession and the other prohibited from disturbing it and causing breach of the peace. If, therefore a party who was in possession at the time of the application or within two months from the date of the application has lost his possession to the other party who could successfully maintain that possession for a period of over two mouths, until the date of the preliminary order, there is nothing absurd or incongruous in declaring that person's possession. On the other hand, it would be quite unfair and contrary to the policy of maintenance and preservation of peace to oust a person who is continually in possession for two months or more.

When one considers that the powers vested under this section are utilised to protect the possession even of squatters, so long as they maintain their possession and drive the other person to seek redress or create conditions whereby a breach of the peace is apprehended calling for the exercise of the jurisdiction of the Magistrate to enquire into as to which of the parties is in actual possession, there is nothing mainfestly opposed to that policy in declaring the possession of a person who' was able to dispossess the other in possession on the date of the application and maintain his possession for two months before the passing of the preliminary order.

There is, in our view, no warrant for the application of the equitable principles to engraft upon a statutory fiction, another fiction by deeming the order to have been passed at the date of the petition, when in fact it was not on that date. Whichever the maxim actus curiae neminem gravabit or nunc pro tune that cannot, in our view, be pressed into service to negative the intention of the legislature so clearly and expressly mainfested in the language used by it, nor is the postulate posited by the theory of nunc pro tune has any justification as the jurisdiction is not necessarily exercised on a petition by one of the parties, but by the Magistrate suo motu when the making of the preliminary order cannot he related back to any petition.

True it is, that the Magistrate in matters affecting the breach of the peace must exercise his powers with due diligence and with promptitude and speed in passing the preliminary order and the police have an equally important duty to submit their report when called for without delay or procrastination; but any laxity in the observation of this basic principle underlying the exercise of the power under this section should not be allowed to affect the interpretation of the statute.

6. In considering the conflict of decisions --one in favour of accepting the plain meaning of the words used in the section and the other invoking the equitable doctrines in construing the language of the section on the basis of hardship -- we propose only to discuss a few out of the plethora of cases. Before we do so, suffice it to note that the majority of the decisions in India arc in favour of the former line of interpretation which is in consonance with our own view of the scope and ambit of the section.

7. In the Madras High Court, Wallace, J., in Krishnam Raju v. Chintalaswami Naidu, AIR 1927 Mad 816 (1), Devadoss, J. in Srinivasa Reddy v. Da-saratharama Reddy, ILR 52 Mad 66 : (AIR 1929) Mad 198), Lakshmana Rao, J. in Ammanna v. Sita-ramayya, 49 Mad LW 473 following Devadoss, J. Govinda Menon and Basheer Ahmed Sayeed JJ. in : AIR1951Mad500 have interpreted the deeming provision in the second proviso against the terms and tenor expressly embodied therein by holding that inasmuch as the party should not be made to suffer because of the delay of the court in passing the preliminary order refer-red to in Sub-section (1) of Section 145, that order should be deemed to have been passed on the date when the petition has been presented.

On the other hand, Jackson, J., in Pichai Moopan v. Narayanaswamy Mooppan, 1931-4 Mad Cr. C. 168 after referring to the decisions of Wallace, J., and Devadoss J., and Happell J., in Aruna-chala Goundan v. Chinnadurai, (1945) 1 Mad LJ 210 : (AIR 1945 Mad 216) after referring to the decision of Devadoss J. took the opposite view, viz., that where the Legislature has fixed a definite period for interference in these quasi-judicial civil disputes, Courts ought to be guided by it and the Court should without reference to any other consideration, abide by that rule even if, for no mistake or fault of the party complaining the preliminary order was not passed immediately after the presentation of the petition.

The Bench decision of Govinda Menon and Basheer Ahmed Seyeed, JJ. in : AIR1951Mad500 , after considering all the single Bench decisions of the Madras High Court and applying the maxim actus curiae nemi-nem gravabit (the act of the Court shall prejudice no man) and the fiction of mine pro tune (now for then) declared the decisions in 1931-4 Mad Cr. C. 168 and (1945) 1 Mad LJ 210 : (AIR 1945 Mad 216), not to be good law and held that where due to the fault of the court there has been delay in passing the preliminary order that order should be deemed to have been passed on an earlier date.

In other words, according to this decision, if it is the proper view to take of the compelling provisions of Sub-section (1) of Section 145, viz. that no appreciable time should elapse between the presentation of complaint or the receipt of the police report and the passing of the preliminary order, then it necessarily follows that the preliminary order should be deemed to have been made when, the Magistrate takes cognisance of the matter and satisfies himself about the urgency.

8. With great respect, we do not think that this is the proper view to take of the compelling provisions, because to do so would be to confuse the administrative desideratum of acting with speed and promptitude with the necessity and duty to interpret the legislative intent as manifested by the clear and unambiguous language used in the section. Nor, as observed by Subba Rao C. J. (as he then was) in : AIR1955AP99 referring to the intention spelled out by the learned Judges in : AIR1951Mad500 , in support of their interpretation, it is apparent 'how the history and the progress of the legislative provision is indicative of any such intention on the part of the legislature.'

On the other hand, that very history 'not only does not support the reasoning of the learned Judges, but also indicates that the framers of the proviso did not intend to extend the scope of the operation of the fiction beyond two months.' In that case, the Bench held that as the filing of a petition is not necessary condition for invoking the jurisdiction of the court to make a preliminary order, it is not permissible to hold that the preliminary order must be deemed to have been made on the date of the filing of the petition. If that was the intention of the Legislature, they would have added a proviso, as they did in other statutes, that a preliminary order, though made at a later stage must be deemed to have been, made on the date on which the petition was filed. It would be pertinent to refer to the observations of Subba Rao, C. J. at p. 118 (of Andh WR) : (at pp. 102-103 of AIR) which are as follows :

'Nor can we agree with the learned Judges that the principle embodied in the legal maxim actus curiae neminem gravabit can usefully and legitimately be invoked in the present case. That maxim recognises the equitable principle that an act of the Court shall not prejudice any man. It is founded upon justice and good sense and affords a safe and certain guide for the administration of law. The foundation for the application of the principle is that the Court is under a duty to do a particular act and it has failed to do so which caused prejudice to the other side.

To apply that provision to the instant case, it must be established that the Courts should make the preliminary order on the date of the petition filed under Section 145, Criminal Procedure Code. The provisions of Ssc. 145, as we have indicated, do not show that the proceedings under the section should be initiated only by a petition filed by the affected party. It may also be initiated suo motu by the Magistrate. Nor is the date of the filing of the petition the basis for making a preliminary order under that section .....

The jurisdiction to make a final order does not depend on the manner in which the proceedings are initiated but on the satisfaction of the Magistrate that a breach of the peace was imminent on a particular date when he makes the preliminary order. Further, to apply the equitable principle, it would be necessary to ascertain the acts of a Court which prejudiced a party to apportion the blame between the. Court and the party and to fix the period of delay attributable to the Court's acts. In such an enquiry, it cannot be premised, that in every case, the delay caused by the court, if added, would synchronise with the date of the application. It would be a futile enquiry. The said principle was invoked and applied to a case where a party has done all he should do under a statute and, by a mistake of Court, he was precluded from completing the act, in which case it was; held that the party must be deemed to have done the act on the date on which he had done his part. This is illustrated by the case where a party made a deposit, which is a condition for setting some order and he had done all he should do in tile matter but he was prevented from doing so by the mistake of an officer of the Court. See Gopalakrishna Pillai v. Kunjithapatham Pillai, 45 Mad LJ 849 : (AIR 1924 Mad 324), Buti Ram v. Sardar Singh, AIR 1934 Lah 875, Muthia Chetty v. Suppan Servai, ILR 38 Mad 291 : (AIR 1915 Mad 865). In those cases by mistake of the office the party could not complete the act within time prescribed and the Courts applied the maxim and held that he must be deemed to have completed that act within the time. Those decisions have no bearing on the question to be decided.' With great respect, we are in complete agreement with these observations.

9. The High Courts of Assam, Allahabad, Nagpur, Orissa, Patna, Punjab and Rajas than have all dissented from the view expressed by the Madras High Court in favour of principle of nunc pro tune which accords with our views. The cases to which we refer are Emperor v. Parashram, AIR 1931 Nag 38, Emperor v. Baijnath, ILR 5 Luck 440 : (AIR 1929 Oudh 526), Meharban Singh v. Bhola Singh, ILR 57 All 488 : (AIR 1935 All 35), Tolan Kalita v. Bhuban Chandra, AIR 1951 Assam 161, Lakshmi Narain Singh v. Jugeshwar Jha, AIR 1954 Pat 169, Janama Bhoi v. Draupadi Bhoiani, : AIR1952Ori26 , Mahmood Beg v. Ehsan Beg, AIR 1941 Oudh 515, Ganga Bux Singh v. Sukhdin, : AIR1959All141 (FB), Sri Ram v. State, , Kewaldas v. Phusa, 1957 Cri LJ 682 (Raj).

We do not, however, propose to examine all these cases, except a few. In the case of : AIR1952Ori26 , Ray, C.J. expressly dissented from the Bench decision of the Madras High Court referred to above and observed that 'it is not permitted to legislate by reading into the proviso and extending the period of two months to any period which, according to the Court, lapses due to the negligence or the dilatoriness of the Magistrate.'

The Full Bench in : AIR1959All141 dissented from the Madras decision and the decision of Shri-pat Rao, C. J. and Siadat Ali Khan J. of the former Hyderabad High Court in Bhadramma v. Kotam Raj, (S) AIR 1955 Hyd 140 and held that the doctrines of nunc pro tune and actus curiae neminem gravabit cannot foe applied to an order passed by a Magistrate under Section 145(4).

Chaturvedi and Nigam JJ. observed :

'From the nature of the provisions it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected only incidentally. The nature of the enquiry is quasi civil. It is an incursion by the original court in the jurisdiction of the civil court. It is, therefore, necessary that this incursion should be carefully circumscribed to the extent absolutely necessary for discharging the function laid on the Magistrate of preserving the peace.'

While Mulla J. stated that

'the language of the section appears to be quits clear and unequivocal. The legislature expressed itself in clear terms that the legal fiction which is created in favour of a party wrongfully dispossessed cannot be extended beyond two months prior to the passing of the preliminary order. A period of limitation is prescribed within which this legal fiction is permissible where the legislature in clear terms has expressed itself that a person may be deemed to be in possession only upto two months after dispossession, it is not open to a court of law to disregard that direction.

The limitations are always fixed arbitrarily, but the Courts of law have to follow them strictly.'

In AIR 1954 Pat 169, Imam and Ahmad, JJ. approved the decision in AIR 1931 Nagpur 38 and ILR 57 All 488 : (AIR 1935 All 35) and dissented from the view of Devadoss J. Imam, J. observed at page 170 :

'While I think from the point of view of hardship and perhaps even a sense of equity, sentiment should lead a court to favour a party who has been forcibly and wrongfully dispossessed, I think it would be beyond the functions of a Court to be misled by such sentiments and give a construction to the provisions of a statute, which en-tirely alters it and gives to it a meaning which is contrary to the plain words of the statute.' It is unnecessary to consider any of the other deci-sions, all of which apply the sound and well accepted principle of interpretation that the plain words of the statute should be given full force and effect.

10. In the result, we answer the reference that the crucial date under the second proviso to Sub-section (4) of Section 145 Cri. P. C. is the date of the preliminary order and that there is no room for applying any fiction relating to the dale of the preliminary order to the date of the petition under Sub-section (1) of Section 145 Cri. P.C .


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