Skip to content


Bhadramma and anr. Vs. Kotam Raj - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1955CriLJ1488; 1955CriLJ811
AppellantBhadramma and anr.
RespondentKotam Raj
Excerpt:
.....applicant, kottam raj complained of breach of peace to the police authorities on 1-12-1952, the police took possession of the house in dispute on 11-12-1952. it deposited the key of the house which was locked by it in the nazarath. the learned judge of the single bench has referred to the various authorities of the indian high courts and has expressed an opinion that as there is some conflict on this point, the matter may better be decided by a division bench. the order should follow the petition that the magistrate should be satisfied on the complaint or the report of the police and should not enter into any enquiry at that stage whether the complaint or the report of the police is correct or not. it is in such circumstances that the well known maxim 'actus curiae neminem..........circle inspector could not be recorded till 14-2-1953. the preliminary order was passed on that date. the magistrate after holding the necessary enquiry came to the conclusion that kotam raj, the complainant, was in possession of the house till 30-11-1952 and that he was dispossessed before 1-12-1952 when he returned from some village where he had gone on 30-11-1952. the magistrate came to the conclusion that this was dispossession within two months having regard to the provisions of section 145, sub-section (.4) read with its proviso.it was argued that the said proviso could only by availed of if trip riirpossewinn of i-vte annlicant had taken place within two months from the date of the preliminary order i.e.. in this case, if thai had happened on or before 14-12-1952, the.....
Judgment:

Siadat Ali Khan, J.

1. This is revision petition No. 637/6/1954 against the judgment of the MunsifE Court, Miryalguda, dated 8-3-1954. The revision petition was first heard by a Single Bench of this Court and by judgment dated 17-11-1954 it has referred the case to this Bench Under Section 8, Hyderabad High Court Act. We have heard the arguments of the learned advocates of the parties.

2. The facts alleged are that the applicant, Kottam Raj complained of breach of peace to the Police authorities on 1-12-1952, The Police took possession of the house in dispute on 11-12-1952. It deposited the key of the house which was locked by it in the Nazarath. A report was also filed and the learned Magistrate decided that he would record the deposition of the Circle Inspector. The deposition was recorded on 14-2-1953 and the preliminary order was passed on that date. It was argued before the learned Magistrate that having regard to the provisions of proviso to Sub-section (4) of Section 145, Criminal P. O. as the dispossession has taken place more than two months before the date of the preliminary order, the applicant could only be referred to a civil court and could be given no remedy by the criminal court. The learned Magistrate did not agree with this view, and recorded the finding, that, on evidence, the possession of the applicant was established and he should, therefore, be given possession of the house in dispute. The learned Judge of the Single Bench has referred to the various authorities of the Indian High Courts and has expressed an opinion that as there is some conflict on this point, the matter may better be decided by a Division Bench.

3. The state of authorities appears to be as follows. In - 'Krishnam Raju v. Chintalaswami Naidu' AIR 1927 Mad 816 (A) and - 'Srinivasa Reddy v. Dasaratha Rama Reddy' AIR 1929 Mad 198 (B), the court took the view that even though the preliminary order may have been passed more than two months after the date of dispossession, an order under 8. 145 could be passed as no party should suffer from the delay on the part of the Court. This view has been followed by-'Chunchu Narayana v. Kesappa' : AIR1951Mad500 (C) and - 'Subarna v. Kartika' : AIR1954Ori183 and - 'Ammanna Sastri v. Sitaramayya', 49 Mad LW 473 (E). In - 'Arunachaia Goundan v. Chinnadurai' AIR 1945 Mad 216 (F), however, another view was taken and it was held that when the words of a statute are clear, they should be literally applied; that the words of the proviso to suo-s. (4) of Section 145 are clear and, therefore, if the interval between the dispossession and the date of the preliminary order is longer than two months, no order can be passed Under Section 145 and the only course open to the Magistrate is to maintain the possession of the non-applicant. This view has been followed by almost all the Indian High Courts, for instance, - 'Lakshami Narain. Singh v. Jugeshwar Jha1 AIR 1954 Pat 169 (G), - 'Tolan Kalita v. Bhubban Chandra' AIR 1951 Assam 161 (H), - 'Emperor v. Parashram' AIR. 1931 Nag 38 (I), - 'Meharban Singh v. Bhola Singh' AIR 1935 All 35 (J), - 'Janama Bhoi v. Draupadi Bhoiani' AIR 1952 Orissa 26 (K), - 'Mohomed Beg v. Ehsan Beg' AIR 1941 Oudh 51& (L), - 'Mohd. Ali v. Shamsul Haq' AIR 194& Sind 33 (M), and - 'Bhairon Singh v. Nain Singh', 1952 Raj LW 441 (N). this Court in - 34 Deccan LR 263 (O) and - 'Patima Sultana Begum v. Rang Rao' AIR 1954 Hyd 215 (P) also took the same view as that of the Madras High. Court in AIR 1945 Mad 216 (P).

4. A brief resume of the 'ratio decidendi' of these various judgments may be given here. The line which the case following AIR 1945 Maa 216 (P) took is this:

Undoubtedly it is unfortunate that a party should be prejudiced by delay in making of a preliminary order under Sub-section (1), especially if that delay is in any particular case attributable to the ineptitude on account of the multiplicity of business in the courts but we cannot concede that any interpretation at variance with the plain words of the section is justified.

On the other hand the reasoning of the line of cases following 'AIR 1927 Mad 816(1) (A)', appears to be as follows :

A perusal of Section 145(4), Criminal P. C. and its proviso makes it clear that no time should elapse between the complaint and the issue of the preliminary order. The order should follow the petition that the Magistrate should be satisfied on the complaint or the report of the Police and should not enter into any enquiry at that stage whether the complaint or the report of the Police is correct or not. So, the Magistrate is not justified in delaying the passing of a 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 a subsequent date, it should be deemed to have been passed immediately after the receipt of the Police report or the 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. Broom's Legal Maxims, 10th Edn., page 73 explains this maxim by the illustration that 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 tie prejudiced by that delay but should be allowed to enter up his judgment retrospectively to meet the justice of the case and judgment may be entered 'nunc pro tune' (now for then; for the delay is the act of the Court for which neither party should suffer.

5. We carefully considered all the above authorities. It is evident that the weight of authority is on the side of AIR 1945 Mad 216 (.F). We are quite clear that as far as the principle enunciated in it is concerned, there is no room for difference. We fully endorse the view that when the words of the statute are clear, there is no room left for interpretation and the clear words of the statute should be given effect to. Still, when a given state of affairs does not come within the obvious meaning of the words of the statute, i.e., when certain contingencies are not provided for; or, when the words of a provision though crystal clear, do not embrace a particular question in hand and, it seems obvious that it was not contemplated by the legislature, there appears to be, what is well known in canons of interpretation, the case of casus omissus. It is trite knowledge that in every statute there are several casus omissi. According to the celebrated writer, Prof. Allen,

to leave no contingency unprovided for requires perfect foresight and perfect command of the language. Perfect foresight and perfect command of the language, is not within the competence of ordinary mortals and, therefore, of the draftsmen who draft the statutory provisions and hence very often Judges find provisions which do not cover the particular case which arises for decision before them. They have, therefore, to look to the intention of the legislature as gathered from the entire provisions of the statute.

In the particular case now before us the words of the proviso to Sub-section (4) of Section 145 appear to come within the doctrine of casus omissus. The provision only speaks of dispossession within two months of the date of the preliminary order. The words are very clear but they do not contain any provision in respect of cases in which the date of the preliminary order exceeds two months. In this case, there were several adjournments owing to the inability of the Circle Inspector to come and depose in support of his report. In the result, the dispossession which had taken place on 1-12-1952 was deposed to by the Circle Inspector on 14-2-1953 and the preliminary order was passed on 14-2-1953, i. e., more than two months after the date of dispossession.

It is quite evident, therefore, that the proviso has not provided for the contingency where the date of dispossession exceeds two months. Hence as already stated above, we have to look to the entire provisions of 3. 145 and the evil which they are intended to meet. Section 145 Is intended to stop breaches of peace and if the remedy provided by it is denied, it will not be acting in accordance with the intent of the legislature as expressed in the provisions of Section 145. This we do not think, is what the legislature intended and what the canons of interpretation enjoin. We are, therefore, clearly of the opinion that an order should be passed Under Section 145 when the delay is not due to any fault of the parties but due to circumstances incidental to the working of the court. A consideration of the 'ratio decidendi' of the line of cases following AIRi 1927 Mad. 816 (1) (A) given in paragraph 4 of this judgment will show that the application of the doctrine of 'nunc pro tune' is, in other words, the application of the doctrine of casus omissua as detailed by us in this paragraph. In our opinion, therefore, this revision petition does not merit acceptance and is, therefore, dismissed.

Palnitkar, J.

6. I agree. Any other interpretation will lead to difficulty and absurdity. The facts of this case amply illustrate that position. On 1-12-1952, Kotam Raj, the complainant, applied to the Police Authorities Under Section 145, Criminal P. C, the Police made the investigation and finding an imminence of breach of peace, took possession of the house in dispute on 11-12-1952; it locked the house and on 24-12-1952 deposited the key in the court. A report was filed in court on 12-12-1952. But the deposition of the Circle Inspector could not be recorded till 14-2-1953. The preliminary order was passed on that date. The Magistrate after holding the necessary enquiry came to the conclusion that Kotam Raj, the complainant, was in possession of the house till 30-11-1952 and that he was dispossessed before 1-12-1952 when he returned from some village where he had gone on 30-11-1952. The Magistrate came to the conclusion that this was dispossession within two months having regard to the provisions of Section 145, Sub-section (.4) read with its proviso.

It was argued that the said proviso could only by availed of if trip riiRpossewinn of i-Vte annlicant had taken place within two months from the date of the preliminary order i.e.. in this case, if thai had happened on or before 14-12-1952, the preliminary order being on 14-2-1953. If this argu-'ment is accepted, then none of the contestants would get an order in their favour under the section as none of them was in actual possession of the house in dispute on 14-12-1952. As already stated, it was the Police who took possession of the house on 11-12-1952 and the possession was from that date either with the Police or with the Court. This is not a case of inability on the part of the Magistrate to determine possession upon the evidence adduced by the parties nor is it a case of possession of the third party not contesting the case. Naturally, the Magistrate cannot declare that the possession was of the Police as the Police had no claim to the property but- attached the same to prevent breach of peace so that the court may restore it to the party entitled. It is in such cases that the principle 'nunc pro tune' (now for then) Is to be applied, for the delay in making the prett- minary order is the act of the court for which none of the parties should suffer, as an act of the court shall prejudice no one. I respectfully agree with the opinion of Panigrahi O. J., reported in Alii 1954 Orissa' 183 (D). There has been some conflict of opinion as to whether the expression 'two months next before the date of such order' should be literally construed or whether a more liberal interpretation should be adopted.

7. In view of the wording of the section, I am of the opinion, that a literal interpretation is necessary as the section provides that possession 'at the date of the order' should be looked Into.

8. In determining the object of the enactment or the meaning of it language in any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles, should in all cases of doubtful significance, be presumed to be a true one (Maxwell 191).

9. The 'ratio legis' in enacting the proviso to Section 145, 01. (4) appears to be to give relief to persons dispossessed within two months from the date of the complaint. We have therefore to deduce the abovesaid intent in spite of the authority of the printed word giving preference to the dictates of legal reasonableness in the context of the enactment. One of the canons of interpretation according to Allen is

if the printed word irresistibly leads to an anomaly, then the Judges must regretfully allow it to do so: the responsibility is not theirs. But if reason and convenience can do it, this result will always be avoided. It is always to reason and convenience that the court leans....

10. For the above reasons, I dismiss this revision petition.


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