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Ganga Bux Singh Vs. Sukhdin - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberCriminal Ref. No. 43 of 1956
Judge
Reported inAIR1959All141; 1959CriLJ261
ActsCode of Criminal Procedure (CrPC) , 1998 - Sections 145, 145(1) and 145(4)
AppellantGanga Bux Singh
RespondentSukhdin
Appellant AdvocateB.L. Kaul and ;Narain Sahai, Advs.
Respondent AdvocateB. L. Shukla, Adv.
DispositionReference allowed
Excerpt:
criminal - dispossession - proviso 1 and 6 to section 145 (4) of criminal procedure code, 1898 - respondent forcibly dispossessed from his plot by appellant - magistrate did not examine merits of the case - passed preliminary order more than two months after dispossession of respondent - held, order not valid - party cannot be penalised for laches of the magistrate as he made unnecessary delay in passing preliminary order. - - the learned additional sessions judge has accordingly referred the matter to this court and recommended that the order passed by the learned magistrate on 24-4-1956 be set aside and ganga baksh singh be declared to be in possession and be restored to possession. 7. section 145 of the code of criminal procedure so far as it is relevant for our purpose.....b.n. nigam, j.1. on 8-8-1955, sukh din made an application under section 145, code of criminal procedure to the sub-divisional magistrate, salon, district rae bareli claiming to be sirdar of plot no. 369/2 in village ahal, police station salon as heir of his deceased brother; bhagwan din. he alleged that ganga baksh singh, the opposite party, who was previously the zamindar, had taken forcible possession of the plot on or about 24-7-1955.2. the sub-divisional magistrate asked the police for a report by 23-8-1955 as to the existence of an apprehension of a breach of the peace. the police report was not received on that date and was awaited for till 12-9-1955. actually the police submitted a report on 31-8-1955 and this was received by the magistrate on 8-9-1955 but for some unexplained.....
Judgment:

B.N. Nigam, J.

1. On 8-8-1955, Sukh Din made an application under Section 145, Code of Criminal Procedure to the Sub-Divisional Magistrate, Salon, district Rae Bareli claiming to be Sirdar of plot No. 369/2 in village Ahal, Police station Salon as heir of his deceased brother; Bhagwan Din. He alleged that Ganga Baksh Singh, the opposite party, who was previously the zamindar, had taken forcible possession of the plot on or about 24-7-1955.

2. The Sub-Divisional Magistrate asked the Police for a report by 23-8-1955 as to the existence of an apprehension of a breach of the peace. The police report was not received on that date and was awaited for till 12-9-1955. Actually the police submitted a report on 31-8-1955 and this was received by the Magistrate on 8-9-1955 but for some unexplained reason, it was not put up before the learned Magistrate on 12-9-1955 and no preliminary order under Section 145(1) of the Code of Criminal Procedure was passed till 14-10-1955. The land in question was attached on 18-11-1955.

3. After completing his enquiry the learned Magistrate by his order dated 24-4-1956 held that Sukh Din was in possession all along. He released the attached crop in favour of Sukh Din and forbade Ganga Baksh Singh from interfering with Sukh Din's possession. Thereupon Ganga Baksh Singh filed a revision before the Sessions Judge. This was heard by the learned Additional Sessions Judge who held that Sukh Din had been, on his own admission, out of possession for more than two months on the date of the Magistrate's preliminary order and as such he could not under the proviso to Sub-section 4 of Section 145, Cr. P. C. be deemed to have been in possession on the date of that order.

The learned Additional Sessions Judge has accordingly referred the matter to this Court and recommended that the order passed by the learned Magistrate on 24-4-1956 be set aside and Ganga Baksh Singh be declared to be in possession and be restored to possession.

4. The reference came up for hearing before one of us. It was urged that Sukh Din could not be penalised for the laches of the learned Magistrate inasmuch as he had unnecessarily delayed the passing of the preliminary order. It was pointed out that if the learned Magistrate had passed the preliminary order on 12-9-1955 on which date the police report had been received, the dispossession would have been within two months of this preliminary order and Sukh Din would have been restored to possession.

The argument was that Sukh Din could not be made to suffer for the unnecessary delay on the part of the learned Magistrate. It was urged that the decision in Chunchu Narayana v. Karrapati Kesappa : AIR1951Mad500 , lays down the correct law when it approves of the application of the principle of actus curiae neminem gravabit (an act of the Court shall prejudice no man) and therefore the Magistrate's preliminary order under Section 145(1) of the Code of Criminal Procedure should be deemed to have been passed on the date the application was made to him, i. e., on the date he took cognisance of the application of Sukh Din.

This view was contrary to the view expressed in the previous decisions of this Court and there-lore the learned single Judge referred the matter to a Division Bench which in its turn, in view of the importance of the question and the clear cleavage of opinion between different High Courts, considered it proper to refer the matter to a larger Bench.

5. We have heard the learned counsel for the parties at considerable length. The arguments addressed before us reflect the conflict of authorities, There is the opinion as represented by Emperor v. Baijnath ILR 5 Luck 440 : (AIR 1929 Oudh 526) (B), Meharban Singh v. Bhola Singh : AIR1935All35 , Pearey Lal v. State, 1956 All LJ 267 (D), Tolan Kalita v. Bubhan Chan-dra, AIR 1951 Assam 161 (E), Padmaraju Subba. Raju v. Padmaraju Koneti Raju : AIR1955AP99 , Ayyan Padmanabhan v. Padmanabhan Nanu, (S) AIR 1955 Trav-Co. 262 (G), and Lakshmi Narain Singh v. Jugeshwar Jha, AIR 1954 Pat 169 (H). A diherent view has been taken in Chunchu Narayana v. Karrapati Kesappa (A) supra. This has been substantially accepted in Badramma v. Kotam, Raj, (S) AIR 1955 Hyd 140 (I). The High Court of Orissa has taken a different view partially in consonance with the Madras view in Gangadhar Singh v. Shyam Sunder Singh : AIR1958Ori153 . The learned Judges of the Orissa High Court appear to have laid down :

'If there was delay due to local enquiry or otherwise in drawing up the proceeding, a party will not be permitted to take the date of his petition or the date of his reporting the matter to the police to be the starting point for computation of the period of two months for the purpose of applying the second proviso to Section 145(4) .....

There may be circumstances where the delay in taking action is entirely due to the Court. For instance ...., the Magistrate, instead ofdrawing up a proceeding under Section 145, Cr. P. C. draws up a proceeding under Section 144, Cr. P. C..... and then, on the expiry of the order underSection 144 converts the proceedings into one under Section 145, it will not be proper to hold that the relevant date for the purpose of the proviso to subsection (4) of Section 145 is the date on which the preliminary order under Section 145 (1) was passed and not the date on which the order under Section 144 was passed.'

6. The arguments that appealed to and were accepted by the Madras High Court have been repeated before us. In view of the clear conflict, we are of opinion that we should proceed to consider the provisions of the section itself and their scope keeping the judicial decisions in view and examine the arguments afresh.

7. Section 145 of the Code of Criminal Procedure so far as it is relevant for our purpose reads :

'(1) Whenever a ..... Magistrate of firstclass is satisfied from a Police-report or other information that a dispute likely to cause a breach of the peace exists ..... he shall make an orderin writing, stating the grounds of his being so satisfied, and requiring the parties concerned .....to put in written statements of their respective claims. ....

(2) .....

(3).....

(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 thestatements ..... and, if possible, decidewhether any and which of the parties was at the date of the order before mentioned in such possession of the said subject:

Provided 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 .....

(5) Nothing in this section shall preclude any party ..... from showing that no such dispute as aforesaid exists or has existed; and in such case the Magistrate shall cancel his said order, and all further proceedings thereon shall be stayed.....

(6) If the Magistrate decides that one of the parties was or should under the first proviso to subsection (4) be treated as being in such possession ofthe said subject, he shall issue an order .....and when he proceeds under the first proviso to subsection (4), may restore to possession the party forci-bly and wrongfully dispossessed.

(7) .....

(8) .....

(9) .....

(10) Nothing in this section shall be deemed to be in derogation of the powers of the Magistrate to proceed under Section 107'.

8. The ratio decidendi in Chunchu Narayan v. Karrapati Kesappa (A) (supra) was that no one should be made to suffer for the Court's failure to do a thing which it ought to have done. Two of the judgments of the same High Court were relied upon and two others were dissented from. The argument before the Court was:

'In other words, the contention is that when once a preliminary order contemplated under Section 145 (1) is passed it should be deemed to have been passed eo instanti the receipt of the complaint or the police report and therefore the period to be reckoned backwards of the dispossession must be the period of two months from the date of the complaint.'

After referring to the law as it previously stood and the two decisions of the Calcultta High Court, the learned Judges stated:

'It was when the state of the case law wassuch, that the proviso was introduced and the object of the proviso was to create, as it were, by a legal fiction, a possession with the party who is entitled to be in possession as found by the Court, though actually at the time of the presentation of the peti-'tion he was riot in possession.

This shows that the proviso itself is the result of a legal fiction because physically the successfulparty was not in possession on the date of thePresentation of the petition or the preliminary order; ut by the proviso the Court deems that he is in such possession. We have already expressed our opinion 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 is satisfied. One should follow immediately the other. The satisfaction of the Magis-' trate 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 the other information. 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 peaceexisted. If the Magistrate is not justified in takingtime 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.'

They continued at page 967:

'If that 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 the 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 cognizance of the matter and satisfies himself about the urgency. Therefore, by applying the legal fiction of nunc pro tune it is just that the preliminary order should be deemed t(c) have been made on an earlier date.'

9. As the argument was that the preliminary order passed by the Magistrate must be deemed to have been passed' on the date the petition or the police report was received, it is not at all necessary for us, at this stage, to refer to the contentions that the language of the provisions is clear and unambiguous, that in the circumstances there is no scope for interpretation and that the Courts have no power to legislate but must apply the law as it stands.

It is also not necessary to refer to the arguments that the law as regards the limitation must be strictly applied or that despite the attention of the Legislature having been invited to the supposed defect no change has been made though the Code of Criminal Procedure and Section 145 itself have been recently amended.

10. A similar view was taken in Bhadramma v. Kotam Raj (I) Supra. The principle invoked was slightly different. The learned Judges endorsed 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.'

11. We have carefully considered these views and with all respect find ourselves unable to agree with them. A careful look at the provisions and purpose of the section will, in our opinion, indicate that there is no scope for the application of either of the two maxims relied upon in the two rulings.

12. Section 145(1) does not specifically mention any petition. The Magistrate has to be satisfied from a 'police report' or 'other information'. That 'information' may be an application by an interested party or a third party or even the Magistrate's personal information. The information may have been communicated to him in writing or orally or he may have even noticed some conduct of a party which might have given him an indication of an apprehension of a breach of the peace.

It would thus appear that no application is, strictly speaking, necessary for the initiation of the proceedings. It is not that a party comes to the Magistrate with a cause. The starting point of an application or even a police report may not be available in every case and thus when the Magistrate, himself suspecting an apprehension of a breach of the peace, makes certain enquiry and is then satisfied of the existence of the apprehension of a breach of the peace and makes an order in writingstating the grounds of his being satisfied, the date of his order cannot be referred back to the first information received by him.

From this it is clear that the starting point of the proceedings is not the information received by the Magistrate or the application made to him or even the police report but his satisfaction recorded in writing. Subha Rao C,. J. in Pddmaraju Subba Raju v. Padmaraju Koneti Raju (F) (supra) emphasised the same point and stated:

'Though it often happens that a Magistrate is moved by an application by the affected party, a preliminary enquiry also need not be at the instance of a particular party. The Magistrate may initiate it suo motu. Even if he initates it at the instance of an affected party, he may drop it if he is not satisfied that the necessary conditions exist.'

12a. The proceedings start not on the complaint or the police report but on the subjective satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists. The crucial date in all the sub-sections is the date of the Magistrate's recording his satisfaction.

That is the date on which the possession ofparties has to be enquired into and that is also the date from which the period of two months mentioned in the first proviso to Sub-section (4) of Section 145, Criminal Procedure Code has to be counted. Thus it is clear that the Legislature clearly intended that this date should be treated as the date of the initiation of the proceedings and not the date of the original first information given to the Magistrate. In the circumstances it is difficult to apply the argument of casus omissus which was accepted by the High Court of Hyderabad.

13. From the nature of the provisions it is clear that the Magistrate has been given this power pri-mirily to preserve peace. The individual rights are affected only incidentally.

The nature of the enquiry is quasi civil. It is an incursion by the criminal court in the jurisdiction of the civil court. It is, therefore, necessary that this incursion should be carefully circumscribed to the extent absolutely necessary discharging the function laid on the Magistrate of preserving the peace. The provisions of Section 145, Code of Criminal Procedure make that amply clear.

The Magistrate does not enquire into the merits of the claims of the parties or even their right to possess the subject of the dispute. He is only concerned with the question as to who was in actual physical possession on the relevant date. This also indicates that the starting point of the proceedings) must be the date when he was satisfied that an apprehension of a breach of the peace existed and not when he received the first information.

14. It is also clear that the parties have no right to get their dispute adjudicated upon by the Magistrate. Even on the receipt of the application the Magistrate may not think any action necessary. He may not take any action at all under Section 145, Code of Criminal Procedure.

Instead he may take action either under Section 107, Code of Criminal Procedure or under Section 144 of the same Code. He is not even bound to come to a decision. He may find that he is unable to satisfy himself as to which of the parties was then in such possession (Section 146(1) of the Code of Criminal Procedure). In that case he may attach the property until a competent court has determined the rights of the parties thereto and decided which of the parties was entitled to possession.

We need not emphasise that the provisions of tile section clearly indicate that the parties, though they may inform the Magistrate, are not entitledunder the law to a decision of the dispute. It is within the discretion of the Magistrate to take action or not and he may come to a decision or may express his inability to decide the matter. Thus the proceedings under Section 145, Code of Criminal Procedure are materially different from the proceedings in a proper suit.

It is thus not possible to apply the maxims that are applicable to a civil suit to proceedings under Section 145, Code of Criminal Procedure. This is further emphasised by the fact that the Magistrate's jurisdiction does not extend to a determination or the rights of the parties. He does not decide as to which of the parties was entitled to remain in possession or even the nature of the possession.

He merely enquires into the actual physical possession and not the nature thereof. The enquiry itself is summary. This fact has been further underlined by the recent amendments. The result of the enquiry may itself be not improperly equated to a temporary injunction granted by a civil court. The enquiry under Section 145, Code of Criminal Procedure is not a trial. No particular procedure is provided and the parties have all the time a right to go to the Civil Court against the decision of the Magistrate.

15. The first proviso to sub-section (4) of section 145 is clearly permissive. The Magistrate may treat the party dispossessed within two months of his order under Section 145(1) as being in possession. It is his discretion, no doubt a judicial discretion ten be exercised on the facts of the case, either to treat the party dispossessed within two months of his preliminary order as being in possession or to refuse to do so.

He may, if he is of opinion that it is the right-ful owner who has dispossessed a trespasser within two months of his order, very properly refuse to take notice of the dispossession. The parties have no right to ask the Magistrate to treat the party dispossessed as being in possession.

The proviso itself does not vest any right in the party interested. This being a discretionary provision it is only just and proper that the discretion should be circumscribed, within narrow limits and once circumscribed, the limits have to be strictly ob-served. The Legislature in its wisdom vested only a limited discretion and we can see no reason for further extending the period for the exercise of this discretion by deeming that the preliminary order was passed on the date of the original application. Subba Rao C. J. in Padmaraju Subba Raju v. Padmaraju Koneti Raju (F) (supra) at page 102 of the report observed:

'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 court should make the preliminary order on the date of the petition filed under Section 145, Criminal P. C.' In the next paragraph he observed : '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.'

We respectfully agree with those observations. We have already pointed out that the Court was not bound to take action on the application and that as the petitioner was not entitled to any orders the Court's failure to pass an order under Section 145 (1) of the Code of Criminal Procedure did not in fact occasion any prejudice.

The petitioner was not entitled to any order. In these circumstances we respectfully agree with the view expressed in the Andhra case and with great respect cannot agree with the views expressed by the learned Judges in the Madras decision. The proceedings being only in the interest of the maintenance of peace and not in the interest of the preservation of the rights of any party, the application of equitable principles referred to does not appear to us to be justified.

16. We have recorded our respectful disagreement with the decisions of the Madras and the Hyderabad High Courts. It remains for us only to refer briefly to the other arguments addressed to us. It has been urged upon us that the language of the section is clear and there being no ambiguity, the Courts have no right to put their own interpretation on the language as they have no right to legislate.

The mere fact that some hardship may result in individual cases is no justification for our putting the interpretation which will do violence to the lan-guage of the section. There are also good reasons for the Legislature not having fixed a longer period. It may very well be that when one party, howso-ever wronglully, has been in peaceful possession for a period of two months, there is no real apprehension of a breach of the peace left and no justification for holding that there is a likelihood of a breach of the peace.

In the circumstances, the dispute may very well be left for determination to the Civil Court. It is not necessary for us to point out that the jurisdiction of the Magistrate starts with his satisfaction that an apprehension of a breach of the peace exists and ceases the minute he is satisfied that no such apprehension exists or existed. The provisions of Sub-section (5) are clear.

All the parties are permitted to show that no dispute likely to cause a preach of the peace 'exists or has existed.' The sub-section clearly directs that in such case the Magistrate shall cancel his order and all further proceedings shall be stayed. This may very well be before a decision has been given that the apprehension of a breach of the peace hag ceased to exist but the dispute itself continues.

We also need not point out that the proviso, which creates a legal fiction itself, provides a limitation which must be strictly observed. In Nagendra Nath Dey v. Suresh Chandra Dey it was laid down :

'The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.'

The Legislature has carefully provided a period of limitation and we see absolutely no reason why the provisions be not strictly enforced.

17. On a consideration of the arguments before us we respectfully disagree with the views of the Madras and Hyderabad High Courts and in agreement with the weight of the authority and the decisions of the Division Benches of the Assam, Andhra and Travancore-Cochin High Courts and the previous decisions of this Court, we hold that the provision means what it clearly says and it must he strictly construed.

We hold that the Magistrate was not justified in treating or empowered to treat the party who had been dispossessed more than two months before the actual date of his preliminary order under sec-tion 145 (1), Code of Criminal Procedure as being in possession on the date of his order under proviso(1) to Sub-section (4) of Section 145 of the Code of Criminal Procedure.

18. The result is that we accept this refer ence and the recommendation of the learned Additional Sessions Judge.

A. N. Mulla, J.:

19. I have had the advantage of reading the decision of my brother Nigam and I agree with the conclusion reached by him. I will, therefore, briefly give the reasons which have made me come to the same conclusion. The facts of the case are mentioned in the decision of my brother and I need nob repeat them here. I will come straight to the point which is to be decided in this case.

20. The question which was referred to the Full Bench was that where a dispossessed person seeks relief under the provisions of Section 145 Cr. P. C. and the Magistrate passes a preliminary order under Section 145(1) Cr. P. C. more than two months after such dispossession but by his final order he puts him in possession, can this order be deemed to be a valid order on the ground that the court itself was responsible for this delay and so a party cannot be penalized for the fault committed by the Court?

This question has been answered in the affirmative as well as in the negative by different judges in different decisions and there is a clear conflict of opinion. These decisions are cited in the judgment of my brother Nigam. In my opinion this question can be answered only if several subsidiary questions are answered first. They may be tabulated as follows:

Q. 1. Looking to the scope and purpose of Section 145 Cr. P. C. is there any reason to hold that the language of Section 145(4} Cr. P. C. does not fully express the intention of the legislature?

Q. 2. Is there any ambiguity in the language of Section 145(4) Cr. P. C. which would authorise a court! to gave a different meaning to the words other than their natural meaning introducing the principles of equity?

Q, 3. Can equitable principles be applied to an order passed under Section 145(6) Cr. P. C. ?

Q. 4 Does the law contemplate that the Magistrate should pass a preliminary order without reaching a subjective satisfaction that there is a likelihood of a breach of the public peace? and

Q. 5. Can the Magistrate be deemed to have reached a subjective satisfaction at a time when actually he had not reached it and when he was still gathering his information whether there was a likelihood of a breach of the public peace or not? As in my opinion all these questions should he answered in the negative, I agree with the conclusions reached by brother Nigam and hold that a dispossessed party cannot be put back in possession if the preliminary order was passed more than two months after his dispossession.

21. I will now take up these questions one by one.

Q. 1. Looking, to the scope and purpose of Section 145 Cr. P. C. is there any reason to hold that! the language of Section 145(4) Cr. P. C. does not fully express the intention or the legislature?

22. I will first deal with the object of the legislature in enacting Section 145 Cr. P. C. In Ganga Singh v. Raj Bahadur Singh : AIR1958All803 which was decided by a Divisional Bench of this Court on 22-5-1958, I had made some observations on this point which express my point of view. I will quote an extract from that decision here:

'In my opinion in interpreting the provisions of a statute it is always desirable that the purpose of the enactment should be kept in view. Section 145Cr. P. C. is really an incursion of the criminal courts in spheres of those disputes which should be appropriately decided by trie civil courts.

The only justification for this intrusion is that the interests of order and peace are paramount and all other interests including the interests of the owners of immoveable property are subservient to it. The State cannot permit that riots should be committed and heads should be broken merely because two contending parties hold different opinions about their claims to the possession and ownership of some immoveable property. It may be that the owners of property are temporarily deprived of possession of what is rightfully their property and may also be subjected to other inconveniences, but all these considerations are subservient to the imperative necessity of preserving the peace.'

In my opinion an order passed under Section 145 Cr. P. C. is in essence an executive order which has a judicial sanction behind it. In order to maintain the public peace the Magistrate has to see that the status quo is not disturbed by the use of force or violence. The inquiry conducted on the question of possession by a Magistrate is also of a limited character and it may be described as 'summary proceedings'.

The opinion expressed by me above received support from the observations of Hill J. in a Full Bench decision of the Calcutta High Court in Krishna Kamini v. Abdul Jabbar, ILR 30 Cal 155 at p. 195 (M). Hill J. observed:

'In entering upon a consideration of the section it is, I think, important to bear in mind the purpose with which it was enacted. It occurs in that part of the Code which relates to the prevention of offences, and its object is to bring to an end by a summary process disputes relating to land etc. which are in their nature likely, if not suppressed, to end in breaches of the peace.

The maintenance of the public peace was the object before the mind of the legislature and where that supreme object is in view there can be no question but that the convenience and even the rights of individuals must at times be sacrificed for its attainment.'

I am, therefore, of the opinion that the only purpose for the enactment of Section 145 Cr. P. C. is to maintain public peace and not to decide disputes between contending parties. If any relief comes to such a party, it is only an incidental consequence of the primary purpose which is to keep the peace.

When a Magistrate starts proceedings under Section 145 Cr. P. C., he does not do so to decide any question 'inter se' between the parties to the dispute, but he is only concentrating on the question whether this dispute is likely to cause a breach of the peace or not. A party to a proceeding under Section 145 Cr. P. C. is not in the position of a plaintiff in a civil suit and it has no right that the Magistrate must give a decision upon the question of possession. It is in this background that we should interpret the language of Section 145(4) Cr. P. C.

23. To me the language of the Section appears to be quite 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.

Q. 2. Is there any ambiguity in the language of Section 145(4) Cr. P. C. which would authorize a court to give a different meaning to the words other than their natural meaning by introducing the principles of equity?

24. It is a well known principle of interpretation of statutes that where the language of an Act is clear and explicit, the courts must give effect to it whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. There is no room left for interpretation or construction except where the words of a statute admit of two meanings. On a reading of Section 145(4) Cr. P. C., I am of the opinion that two meanings are not possible. There is only one meaning of the words used and, therefore, the natural meaning of these words must be given. In such a case there is no room for introducing any extraneous consideration for interpreting the words. The counsel for the ap-plicant placed before the Court the observations of M. N. Mukerji J. in Sm. Sarat Kamini Dasi v. Nagendra Nath Pal AIR 1926 Cal 65 at p. 73 (N). Mukerji J. observed:

'I am of opinion that except perhaps in cases where injustice has been occasioned by a Court by its own acts or oversights there is no scope for the application of any principles of equity in the administering of the statutes of limitation.' A few lines later in this very decision, he observed:

'In applying the principles of limitations the Indian Courts are not permitted to travel beyond the articles and the exceptions and provisos embodied in the Act itself, and that apart from the provisions of the Act itself there is no principle which can legitimately be invoked to add to or supplement its provisions.'

The first observation of Mukerji J. is not applicable to the circumstances of this case. I will deal with this point at fuller length when I take up the third question.

Q. 3. Can equitable principles be applied to an order passed under Section 145(6) Cr. P. C.?

25. I have already mentioned above the purpose of an order passed under Section 145 Cr. P. C. Such an order is not a decision given on merits between two parties. It is of a temporary character and the aggrieved party can always go to the civil courts to seek its remedy. Section 145 Cr. P. C. is really meant to be used in those cases where not only a dispossession has taken place, but this dispossession is likely to lead to a breach of the public peace. It is this apprehension of a breach of the public peace which is the foundation of the Magistrate's jurisdiction, and not the wrongful act of dispossession.

There can be several disputes in which a party has been dispossessed, but it cannot approach the criminal courts to seek redress, because there is no likelihood of a breach of peace. One can imagine that a party dispossesses another, but the dispossessed party is not in a position to offer any resistance. Obviously in such a case there is no apprehension of any breach of the public peace.

The only remedy in such a case would be to approach the civil courts. It is for this reason that the Magistrate has to satisfy himself before initiating proceedings under Section 145 Cr. P. C. whether there is an apprehension of a breach of the peace or not. The principles of equity cannot be applied to the type of order which the Magistrate passes under section 145 Cr. P. C. These principles are applicable only in those cases where the loss is almost irreparable or at any rate of such magnitude that it would amount to grave injustice. As observed by me above, an order passed underSection 145 Cr. P. C., may at the most deprive the rightful owner of possession over property for a temporary period.

It is true that if the words of the statute are capable of two interpretations, then the interpretation which is more equitable should be preferred, but an equitable interpretation against the clear language of the statute is not permissible. In Re Hall, (1888) 21 QBD 137 (O), Cave, J. observed at p. 141 :

'A very strong case of injustice arising from giving the language of an Act of Parliament its natural meaning must be made out before the Court will construe a section in a way contrary to the natural meaning of the language used; .....'

To the same effect are the observations of Lord Esher in Re Brockelbank, (1889) 23 QBD 461 at p. 462 (P). Lord Esher observed :

'In this proviso the legislature have used language of the widest kind -- 'in all cases' -- so wide that, if its full grammatical meaning be given to it, the proviso will produce injustice so enormous that the mind of any reasonable man must revolt from it. When the language of the legislature construed literally involves such consequences, the Court has over and over again acted upon the view that the legislature could not have intended to produce a result which would be palpably unjust, and would revolt the mind of any reasonable man, unless they have manifested that intention by express words.'

26. It would be seen from the observations of Lord Esher that the express words cannot be questioned even though the conclusion may be most revolting. It is only where the intention is not clearly expressed and the literal interpretation would lead to grave injustice that the principles of equity can be invoked. The language of section 145 (4) Cr. P. C., is free from any ambiguity.

Apart from it the natural interpretation of the words does not produce any grave injustice which is revolting to one's mind. If a person is deprived of property for a short time, it is not such a consequence which revolts one's mind. He can always seek his remedy in the proper court and there is no irreparable loss substained by him. I am, therefore, of the opinion that the principles of equity do not apply to an order passed by a Magistrate under Section 145 (4) Cr. P. C.

27. I will now take up the last two questions together. These questions are :

Q. 4, Does the law contemplate that the Magistrate should pass a preliminary order without reaching a subjective satisfaction that there is a likelihood of a breach of the peace? and

Q. 5. Can the Magistrate be deemed to have reached a subjective satisfaction at a time, when actually he had not reached it and when he was still gathering his information whether there was a likelihood of a breach of the public peace or not?

28. It seems to me that the very basis of the Magistrate's jurisdiction under Section 145 Cr. P. C., is his subjective satisfaction that there is an apprehension of a breach of the public peace. If this subjective satisfaction is not there, the Magistrate has no jurisdiction to entertain the application filed by any aggrieved party.

I have no doubt in my mind that the legislature intended that the Magistrate should initiate these proceedings only after he had reached this subjective satisfaction. If it were not so, every dispossessed person will try to seek a quick remedy by approaching the criminal courts. The Magis-trate's jurisdiction starts only after he is satisfied that the dispute is one which is likely to lead to a breach of the public peace. Obviously the Magistrate cannot be satisfied on the allegations of a party alone.

A party would like to have his case quickly decided and, therefore, claim that an apprehension of a breach of public peace exists. The Magistrate has, therefore, to seek his information from other sources also and it is only when he is assured that there is such a likelihood that he initiates the proceedings and passes a preliminary order. I am, therefore, not prepared to accept that the Magistrate should' pass the preliminary order almost immediately after a party presents its complaint to him.

The Magistrate if he follows this course will turn himself into a civil court, which decides disputes about immoveable property. It was observed in : AIR1951Mad500 :

'We have already expressed our opinion 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 is satisfied. One should follow immediately the other.'

It was, therefore, accepted in this decision that the satisfaction of the Magistrate must precede the passing of the preliminary order and after this satisfaction is reached then there should be no lapse of time between reaching such satisfaction and passing the preliminary order.

In my opinion the preliminary order by itself indicates the time when this 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.

29. No doubt in the normal course the period of two months prescribed by the legislature is more than ample for the Magistrate to make up his mind. The person who is aggrieved approaches the criminal courts almost immediately after dispossession and a period of two months is sufficient for the Magistrate to tap other sources of information in order to decide whether there is substance in the petition of the complaint or not.

But where the Magistrate could not make up his mind within this time because corroborative information was not forthcoming, I do not think that the legislature intended that he must have accepted the allegations made by the complainant without this corroborative information. After all a complainant has no inherent right to seek relief from the criminal courts.

The Magistrate cannot be compelled to take cognizance of a case, although he feels that he has no jurisdiction to do so, as there is no satisfactory information to indicate that the dispute involves a breach of the public peace. I am, therefore of the opinion that the doctrines of nunc pro tunc and actus curiae neminem gravabit cannot be applied to an order passed by a Magistrate under Section 145 (4) Cr. P. C.

30. Lastly I will observe that I am in entire agreement with the view expressed in : AIR1955AP99 .

31. I, therefore, concur in the order proposed and will accept this reference.

32. BY THE COURT. Accordingly, we accept the reference and the recommendation of the learned Additional Sessions Judge. Possession of the land will be delivered to Ganga Baksh Singh.


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