P.K. Tare, C.J.
1. One of us (Tare C.J.) has referred the following question to a larger Bench :
Whether the time taken for calling for a polios report or other preliminary enquiry can be excluded while interpreting the second proviso to Section 145(4) of the Code of Criminal Procedure.
2. The reference arose on the following facts. The respondent filed a complaint on 7.7.1971 alleging that be was dispossessed from khasra Nics. 865, 866 and 871 situated in village Kakrahati, on 31-5.1971 and this dispute was likely to result in a breach of the peace. Therefore, the respondent prayed for action under Section 145(1) of the Code of Criminal Procedure being taken by the Sub-Divisional Magistrate. The Sub-Divisional Magistrate called for a police report which was however received on 9.8.1971. The Sub-Divisional Magistrate passed a preliminary Older under Sub-section (1) of Section 145 on 10.8. 1971. Therefore the question arose whether under the second proviso to Sub-section (4) of Section 145 of the Code the respondent could be placed in possession of the fields. The learned Judges of the Courts below held that the respondent could be placed in possession although the relevant case law was not cited. It appears that the question was not contested in the Courts below from that point of view. But the question was specifically raised in the revision filed in this Court. In the view of the conflicting opinion expressed not only in decisions of different High Courts but also in Single Bench decisions of this Court the Single Bench referred the case to a larger Bench.
3. When the case was argued before the Single Bench and an order of reference was made a Division Bench decision of this Court was not brought to the notice of the Single Bench. The Division Bench case is State of M. P. v. Badgaia, Cri R. No. 389 of 1971, D/-25.6.1973 : reported in Cri L J 1974 Madh Pra 1517. In that case the following question had been referred by a Single Judge to a larger Bench:
Whether a Magistrate loses jurisdiction to pass a preliminary order and is precluded from continuing the proceedings under Section 145, code of criminal procedure after the lapse of two months of forcible dispossession from the land and could the Magistrate order restoration of the possession in such cases to the complainant.
As regards the first part of the question the Division Bench presided over by Shiv Dayal J. and Raina J. in their separate opinions delivered on 25-6-1973 answered the above question as follows:
The Magistrate does not lose jurisdiction to pass a preliminary order and is not precluded from continuing the proceedings under Section 145 of the code of Criminal Procedure after the lapse of two months of forcible dispossession from the land.
Under the section, as it stands the Magistrate can order restoration of possession only where the complainant has been dispossessed within two months of the date of the preliminary order.
This view expressed by the Division Bench in the said case is based on a series of decisions of the Nagpur Judicial Commissioner's Court, namely Nago v. Atmaram AIR 1926 Nag 371 : 27 Cri L J 68, Emperor v. Parashram (1930) 26 Nag L J : 377 : 32 Cri L J 476 and Emperor v. Sunder Lal ILR (1937) Nag 174 : AIR 1936 Nag 271. However we may further observe that the said view has been taken by different High Courts. The Madras High Court took this view in Arunachal Gounder v. Chinnadorai. AIR 1945 Mad 216 : 46 Cri L J 767 and Athiappa Gounde v. Section A. Athiapps : AIR1967Mad445 wherein the earlier view of the Division Bench of the Madras High Court in Narayana v. Kesappa : AIR1951Mad500 was overruled. A Single Bench of the Orissa High Court in Jenama v. Draupadi AIR 1952 Cri 26 : 1952 Cri L J 148 presided over by Bay C, J. also took the same view which was later on affirmed by a Division Bench of the same High Court in Gangadhar Singh v. Shyam Sunder Singh AIR 1958 Cri 153 : 1958 Cri L J 919 subject to the qualification that under certain circumstances the principle of acts curiae neminem gravabit' would be attracted. A Full Bench of the Allahaibad High Court took a similar view in Ganga Bux Singh v. Sukihdin. : AIR1959All141 . A Full Bench of the Andhra Pradesh High Court took the same view in K. Yenkati Bamiata v. Sitiharamiah : AIR1961AP208 .
4. The contrary view was however taken by the Madras High Court in earlier cases viz Chinohiladu krishnamraju v. Chintalaswami Naidu AIR 1927 Mad 816 (I) : (28) Cri L J 782, Srinivasa Reddi v. Dasaratharama Reddi AIR 1929 Mad 198 : 30 Cri L J 144 and : AIR1951Mad500 (supra), but the said Madras cases were overruled by the Full Bench of same High Court in : AIR1967Mad445 (supra).
5. So far as this High Court was concerned. Section B. Sen J. had taken a similar view in Zunzarsingh v Gangabai Cri. R. No. 194 of 1960, D/- 6.1.1961 : 1961 MPLJ (Notes) 202, which was on the lines of the view taken by Gruer J. in ILR (1937) Nag 174 : AIR 1936 Nag 271 (supra). However, Bhutt J. (as he then was) in State v. Mir Ahmed Ali Cri. R. No. 548 of 1954, DA 14.1.1955 : 1955 Nag L J (Notes) 262 had taken a contrary view and had applied the principle of acts curise neminem gravabit'. However, considering the reasoning in the said cases as also the reasoning of the Division Bench of the Court in Cri. R. No. 389 of 1971, D/. 25.6. 1973 : Reported in 1974 Cri L J1517 Madh Pra (Supra), we do not see any reason to depart from the view taken by the Division Bench in Cri. R. No. 389 of 1971 D/. 25-6-1973= Reported in 1974 Cri L J 1517 (Madh Pra) (supra) and it is not necessary for us to give more detailed reasons. We may observe that a strict and literal construction of the second proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure is called for and there is no scope for a liberal interpretation. As indicated by the Division Bench in Cri. B. No. 389 of 1971 DA 251-1973= Reported in 1974 Cri L J (Madh Fra) (supra) the Magistrate does not lose jurisdiction if he does not pass a final order within two months and he can certainly proceed in other ways; but for the purpose of the second proviso to Section 145(4) of the Code no legal fictions can be introduced so as to extend the time specified in the proviso. According to Sub-section (4), the Magistrate, as far as may be practicable, is required to pass an order within two months from the date of the appearance of the parties before him and, if possible to 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. This necessarily means that in the first instance the Magistrate is required to decide the question of possession at the date of the preliminary order. The second proviso merely creates a legal fiction whereby the Magistrate is em .powered to treat a party in possession which has been dispossessed within two months pre ceding the date of the preliminary order. As such the literal and strict construotion of the proviso is called for and the period of two months can in our opinion not be ex. tended simply because the Magistrate calls for a police report or might choose to hold some sort of preliminary enquiry either by recording the statement of the complainant or by recording evidence tendered on behalf of the complainant. Therefore we prefer to adopt the view of the Division Bench in Cri. R.No. 389 of 1971 D/- 256-1973=Reported in 1974 Cri L J 1517 (Madb Pra) (supra). However it is not necessary for us to adjudicate on the aspect whether the principle of acts curiae nerriaem gravabit can be attracted to certain circumstances as indicated in the Single Bench decision of Bhutt J, (as he then was) in Cri. R. No. 548 of 1954 : 1955 Nag L J (Notes) 262) (supra) and by the Division Bench of the Orissa High Court in Gangadhar Singh v. Shyam Sunder Singh AIR 1858 Cri 153 : 1958 Cri L J 919 (supra).
6. As a result of the discussion aforesaid, we answer the question referred to as fallows:
The time taken for calling for a police report or other preliminary enquiry cannot be excluded while interpreting the second proviso to Section 145(4) of the Code of Criminal Procedure.
Let the case be returned to the Single Bench for decision in acordance with the opinion of the Division Bench.