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Gangadhar Singh and ors. Vs. Shyam Sunder Singh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 233 of 1956
Judge
Reported inAIR1958Ori153; 24(1958)CLT274; 1958CriLJ919
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 144, 145 and 145(4)
AppellantGangadhar Singh and ors.
RespondentShyam Sunder Singh
Appellant AdvocateM. Mohanty and ;B.K. Ray, Advs.
Respondent AdvocateR.N. Sinha, Adv.
DispositionRevision allowed in part
Cases ReferredLakshmi Narayan Singh v. Jugeshwar Jha
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....r.l. narasimham, c.j. 1. this is a petition to revise an order dated 30-8-1956, passed by sri f. c. pradhan, first class magistrate, bargarh, under section 145 cr. p.c., declaring the possession of the opposite party (who was the first party before him) in respect of 168.34 acres of sir lands in village kharsal and forbidding disturbance of such possession until eviction in due course of law. the petitioners were the second party in that proceeding before the magistrate.2. the opposite party, shyam sunder singha, is the eldest son of one chandra bhanu singh, who, prior to the abolition of the zamindhari system, was the zamindar of kharsal estate. one hanuman singha who is an agnate of the petitioners was the protected thikadar of the village under the zamindar. he was evicted from his.....
Judgment:

R.L. Narasimham, C.J.

1. This is a petition to revise an order dated 30-8-1956, passed by Sri F. C. Pradhan, First Class Magistrate, Bargarh, under Section 145 Cr. P.C., declaring the possession of the opposite party (who was the first party before him) in respect of 168.34 acres of Sir lands in village Kharsal and forbidding disturbance of such possession until eviction in due course of law. The petitioners were the second party in that proceeding before the Magistrate.

2. The opposite party, Shyam Sunder Singha, is the eldest son of one Chandra Bhanu Singh, who, prior to the abolition of the zamindhari system, was the Zamindar of Kharsal Estate. One Hanuman Singha who is an agnate of the petitioners was the protected Thikadar of the village under the Zamindar. He was evicted from his rights in the village by the Zamindar by a decree of the Civil Court for failure to pay Thika Jema and possession also was obtained with the help of the Court sometime in 1932.

The Sir lands of the village, according to the opposite party, were in the actual possession of the protected Thikadar Hanuman Singha and consequently by virtue of the delivery of possession of the Civil Court in 1932, the Sir lands came into the Khas possession of the Zamindar who since then exercised various acts of possession over the same either by cultivating them himself, or getting them cultivated through bhag tenants. In 1951-52 when the Kharsal Estate was under the Court of Wards that authority also exercised acts of possession over the Sir lands by leasing them out to several bhag tenants.

The petitioners, however, contended that the Sir lands were not in the actual possession of Hanuman Singha but in their own possession and that consequently by virtue of the delivery of possession effected through the Civil Court in 1932, the Zamindar obtained possession only of the landlord's rights over the Sir lands whereas actual cultivating possession in respect of the same remained all along with the petitioners. There was no serious trouble between the parties till 1954 presumably because so long as the Zamindari system was not abolished, the Zamindar exercised considerable influence in the locality and nobody could venture to interfere with his possession, but after the abolition of the zamindari system and the consequent loss of prestige of the zamindar there was serious apprehension of trouble from the petitioners in respect of the Sir lands of the village.

On 21-5-1954, some of the petitioners and some other tenants of the village filed a petition (Ext. B. 9) before the Revenue Office, Bargarh (Tahsildar) alleging that the Zamindar, Chandra Bhanu Singha, had dispossessed them from cultivating the lands, by force and that if the lands were not restored to them by the Revenue Officer within a week they would take possession of the lands by force and sow paddy. This threat was actually carried into effect on 17-6-1954 when admittedly the petitioners and their helpers entered upon some of the Sir lands known as Bundhen Duli and Darsa Uper three Duli ploughed the same and sowed paddy, disregarding the protests of the Zamindar's men.

Opposite party Shyam Sunder Singha went to the Police Station on the next day (18-6-1954) and lodged a station diary entry (No. 174) complaining against the high-handed action of some of the petitioners and apprehending serious breach of peace. He also filed a regular complaint through his authorised agent, Mitra Bhanu Singh, before the Sub-divisional Magistrate, Bargarh on 19-6-1954 (C. I. 125/T/134 of 1954) against seven persons incuding some of the petitioners for offences under Sections 447 and 147 I. P. C.

In that complaint the Sub-divisional Magistrate, Bargarh, after local enquiry, summoned all the accused persons for offences under Sections 447 and 147 I. P. C. and that case is still pending trial. Apart from filing the aforesaid criminal case the said Mitra Bhanu Singh filed another petition before the Sub-divisional Magistrate on 21-6-1954, alleging that in addition to the trespass committed by the petitioners' on Bundhon Duli and Darsa Uper three dull lands, on the 17th June 1954, there was serious apprehension that the tenants would forcibly dispossess the Zamindar of the Sir lands and requesting the Sub-divisional Magistrate to take action under Section 144 Cr. P. C.

A complete list showing the plot number of the Sir lands of the village, having a total area or 168.34 acres was attached to that petition. That was sent to the local Police for enquiry and report. The police report is dated the 28th June 1954 and it contained a recommendation for initiating a proceeding under Section 145, Cr. P. C. in respect of only 14.28 acres of Sir lands. An advance copy of that report sent to the Sub-divisional Magistrate who appears to have received it in his office on the 28th June 1954. But the original report Sent through the Inspector of Police came much later, and though it was put up before the Magistrate on the 14th August 1954, he passed orders only on the 25th August 1954 drawing up a preliminary order under Section 145 (1), Cr. P. C. in respect of 14.28 acres of lands in M. C. No. 96 T/217. of 1954.

On the very same day the opposite party filed a petition before the Magistrate requesting him to draw up a proceeding under Section 145 Cr. P. C. in respect of all the Sir lands of the village having a total area of 168.34 acres. In a subsequent petition dated the 1st October 1954, he reiterated the same prayer and further alleged that apart from the incident of the 17th June 1954 in respect of Bundhan Dull and Darsa uper three duties, the petitioners had cut and carried away paddy crops raised by him in another plot, viz. No. 896.

Thereupon the Sub-divisional Magistrate started another proceeding under Section 145 Cr. P. C. on the 25th October 1954 in Mis. Case No. 120/T. 313 of 1954, for the remaining portion of the Sir lands. Subsequently, he amalgamated the two cases and disposed of them in one enquiry.

3. As regards the allegation of removal of paddy crops from plot No. 896 sometime in September 1954, the opposite party filed a regular complaint of theft (C.I. 265 of 1954) against some of the petitioners, but on the 12th April 1955 the Magistrate of Bargarh dismissed that complaint under Section 203 Cr. P. C. (vide Ext. A) observing that from the enquiry it appeared that the accused persons had sown the paddy crop which they had removed.

4. In the enquiry under Section 145, Cr. P. C. the learned Magistrate's finding was that by virtue of the delivery of possession given by the Civil Court in 1932, the Zamindar obtained actual possession of all the Sir lands of the village. He appears to have disbelieved the petitioner's case that notwithstanding delivery of possession, they continued in actual cultivation of the Sir lands. He further held that the petitioners had forcibly obtained possession of Bundhen Duli and Darsa Uper three dull lands on 17-6-1954 as mentioned by the landlord himself in his petition.

He also held that the petitioners had regained possession of Jhua-Bhag lands (comprised in plot No. 896) and that they had sown paddy thereon and cut away the crop. In coming to this conclusion, he appears to have been very much influenced by the order of the Magistrate who dismissed the theft case (Ext. A) on 12-4-1955 and other evidence on record. Though the exact date on which the petitioners obtained possession of Jhua-Bhag lands is not clear from the record, it seems reasonable to infer that it must have taken place sometime in June 1954 inasmuch as the paddy was harvested sometime in September 1954.

The Magistrate's finding therefore is that the opposite party was in peaceful possession of all the Sir lands of the village on the date of commencement of the two proceedings under Section 145 Cr. P. C. except in respect of Bundhan Duli, Darsa Uper three duli and Jhua Bhag lands which were forcibly taken possession of by the petitioners sometime in June 1954.

5. As already pointed out, the first proceeding under Section 145 Cr. P. C. was started only on 25-8-1954 in respect of 14.28 acres of the Sir lands and the next proceeding in respect of the remaining lands was initiated on 25-10-1954. The dispossession of the plots mentioned above had taken place more than two months prior to the commencement even of the first proceeding under Section 145 Cr. P. C. On behalf of the petitioners it was urged before the Magistrate that they should be held to have been in possession of Bundhan Duli, Dersa Uper three duli and Jhua Bhag lands by virtue of the second proviso to Sub-section (4) of Section 145, Cr. P. C.

The learned Magistrate relying on a decision of Panigrahi C. J. in Subarna v. Kartika, AIR 1954 Ori 183 (A), which held that inasmuch as the opposite party had applied to the Magistrate for preventive action as early as 21-6-1954, the delay on the part of the Magistrate in initiating a proceeding under Section 145 Cr. P. C. till 25-8-1954 should not adversely affect his right and that 'the date of the order' for the purpose of computing the period of two months under the aforesaid proviso to Sub-section (4) of Section 145, Cr. P. C. should be the date on which the opposite party approached the Sub-divisional Magistrate, namely 21-6-1954, and not the actual date on which the proceeding was initiated.

The learned Magistrate was aware of the contrary view taken by Ray C. J. in an earlier decision of this High Court reported in Janama Bhoi v. Draupadi Bhoiani AIR 1952 Orissa 26 (B)' but thought that he was bound by the later decision. As the two decisions are of single Judges of this Court and they seem to give conflicting views on the interpretation of the second proviso to Sub-section (4) of Section 145 Cr. P. C. it was considered advisable to refer this case to a Division Bench so that the law so far as this Court is concerned may be clear and any confusion in minds of Magistrates may be removed.

We are indeed grateful to counsel for both sides for placing exhaustively all the decisions bearing on the subject.

6. The findings of fact arrived at by the learned Magistrate are, I think, clearly unassailable. There was doubtless oral evidence of both sides on the question of possession. But the Magistrate rightly believed the evidence for the opposite party mainly because apart from delivery of possession of the Civil Court in 1932, there was a clear admission in Ext. 9 filed, by several members of the petitioners' party before the Revenue Officer, Bargarh, to the effect that the Zamindar was in possession of all their lands and that he was not giving possession to them.

That petition is dated 21-5-1954 and therein the Revenue Officer's help was sought for, for recovering possession, with a threat to the effect that if possession was not delivered they would enter upon the land by force and sow paddy. One of the signatories to that petition, namely, Pratap Singh appeared as a witness No. 3 on behalf of the petitioners (second party) in the trial court and admitted his signature in Ext. 9. It is true that all the petitioners before this Court were not signatories to that petition, but petitioners Raj Singh, Bhasia Singh, Bhengraj Singh, Mangal Singh, Ram Singh, Nilmani Singh, Gouri Sankar Singh, Behari Singh, and, Sundarsan Singh are signatories.

All the petitioners formed one party before the lower court and they put forward one defence, namely, that they were in possession of the Sir lands. There is no question of any conflict of interest amongst themselves. For the purpose of a summary enquiry under Section 145 Cr. P. C. the trial court was justified in attaching much importance to this admission of dispossession in Ext. 9 by most of the members of the second party before him. This circumstance, coupled with the oral evidence of possession of the first party and the documents of the period when the Estate was under the Court of Wards, fully justified the conclusion of the Magistrate that most of the Sir lands were in the actual possession of the Zamindar (opposite party).

7. As regards the lands known as Bundhen Dull and Darsa Uper three duli the learned Magistrate believed the second party's evidence that they had obtained possession on 17-6-1954. In coming to this finding he was mainly influenced by the admission in the Zamindar's petition dated 21-6-1954 to the effect that the tenants had forcibly ploughed and sowed paddy on these lands. It is true that the Zamindar brought a criminal case against the tenants under, Sections 447 and 147, I. P. C. and that case is still pending. But from the evidence on record it cannot be held that this was a stray or isolated, act of trespass.

There was evidence to show that after their trespass on 17-6-1954 the petitioners continued in possession of those plots. Similarly as regards Jhua-Bhag lands (plot No. 896) the petitioners sowed paddy in June and harvested the same in September 1954, and the criminal complaint filed by the Zamindar for their prosecution for theft was dismissed. Possession of the petitioners in respect of this land also cannot therefore be held to be a stray or isolated act of theft or trespass.

I would, therefore, in agreement with the learned lower court, hold that the opposite party was forcibly and wrongfully disposed of Bundhan Duli and Dersa Uper three duli lands prior to his approaching the Magistrate for preventive action, with a petition dated 21-6-1954, Similarly as regards Jhua-Bhag lands also, though the exact date of dispossession is not clear, yet inasmuch as the proceeding under Section 145, Cr. P. C. was started on 25-10-1954, dispossession must have taken place more than two months prior to that date.

Hence, if for the purpose of the second proviso to Sub-section (4) of Section 145 Cr. P. C. a literal meaning is to be given to the expression 'at the date of the order' it is obvious that the opposite party cannot claim the benefit of that proviso.

8. This leads to the most important question of law for decision namely whether the period of two months mentioned in the aforesaid proviso should be computed from the date of passing the preliminary order under Section 145 (1) Cr. P. C. or else whether it may be computed from an anterior date if there was delay on the part of the Magistrate in initiating a proceeding under Section 145 Cr. P. C.

9. On behalf of the opposite party it was urged that he did all that he could possibly do for the purpose of bringing to the notice of the authorities the high handed action of the petitioners. He lodged a station diary entry on 18-6-1954, when he was dispossessed from Bundhan Duli, and Dharas Uper three duli lands. He also filed a petition before the Magistrate on 21-6-1954 requesting him to take preventive action under Section 144 Cr. P. C. and apprehending breach of peace if no such action was taken.

The Magistrate sent that petition to the Police for report and though the Police report through the proper channel also reached him in time, the Magistrate on 14-8-1954 directed it to be put up on 25-8-1954 and then, on the latter date, drew up a preliminary order under Section 145 (1) in respect of 14.28 acres only and another preliminary order in respect of the remaining area. According to the opposite party, therefore, the true date for the purpose of computing the period of two months should be 21-6-54 and not either 28-8-54 or 25-10-54.

10. There is a clear cleavage of judicial opinion regarding the construction of the second proviso to Sub-section (4) of Section 145 Cr. P. C. One view is that the period of 2 months should be liberally construed and where the party had approached the Court as soon as he was forcibly and wrongfully dispossessed and the Court either by directing local enquiry or otherwise has delayed in passing a preliminary order under Section 145 (1) Cr. P. C., that party should not lose the benefit of the proviso.

The leading decision in favour of this view is that of a Division Bench of the Madras High Court reported in Chunchu Narayana v. Karrapati Kesappa, AIR 1951 Mad 500 (C), where applying the maxims 'actus curiae neminem gravabit' (act of court shall prejudice no man) and nunc pro tune (now for them), it was held that the date on which the party moved the Magistrate should be taken as the crucial date. The previous conflict of decisions of the Madras High Court and other High Courts was noticed in that judgment and it is unnecessary to refer to them in detail.

There is a later decision of the Hyderabad High Court reported in Bhadramma v. Kotam Raj, (S) AIR 1955 Hyd 140 (D), which also adopted the same principle. In AIR 1954 Orissa 183 (A), Panigrahi C. J., adopted the reasons given by the Division Bench of the Madras High Court.

11. On the other hand, the majority view seems to be against giving such a liberal construction to the proviso mentioned above, Thus in Emperor v. Baijnath, AIR 1929 Oudh 526 (E), Tolan Kalita v. Bhuban Chandra, AIR 195:1 Assam 161 (F), Emperor v. Sunderlal, AIR 1936 Nag 271 (G); Mahmood Beg v. Eshan Beg, AIR 1941 Oudh 515 (H) ; Mohammed Ali v. Shamsul Huq, AIR 1940 Sind 33 (I); Meherbans Singh v. Bhola Singh, AIR 1935 All 35 (J); a strict and literal construction was given to the proviso and it was held that even though there might be delay on the part of the Court in taking action, the period of two months should be construed only from the date on which the preliminary order was actually passed under Section 145 (1) Cr. P. C.

In Padmaraju Subba Raju v. Koneti Raju, (S) AIR 1955 Andhra 99 (K), a Division Bench of that High Court examined the correctness of the Division Bench decision of the Madras High Court in AIR 1951 Mad 500 (C), and dissented from that decision. Subba Rao, C. J.. who wrote the leading judgment observed that the maxims 'actus curiae neminem gravabit' and 'nunc pro tune' cannot apply merely because a party filed a petition before a Magistrate for preventive action. To quote his own words:

'It may be that on the date when the application is filed, there is no breach of peace, but on enquiry and on the Police report, a Magistrate may find a threat to breach of peace on a subsequent date and under this Section, if he is satisfied, he is bound to make a preliminary order notwithstanding the fact that at an earlier stage when he was moved there was no likelihood of breach of peace. 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 breach of peace was imminent on the particular date when he makes a preliminary order.'

The judgment of Ray C. J., in AIR 1952 Orissa 26 (B), follows a literal construction of the proviso.

12. It is indeed unfortunate that in the recent extensive amendments made to the Criminal Procedure Code, by the Criminal Procedure Code (Amendment) Act of 1955 this conflict was not resolved by the Parliament by making appropriate amendment to the proviso. Some other Sub-sections of Section 145 were amended and Section 146 was also recast but the aforesaid proviso to Sub-section (4) of Section 145 was left untouched. I am however unable to accept Mr. Mohanty's contention raised on behalf of the petitioners that when the Parliament being fully aware of the conflict of decision, did not care to amend the proviso, though it amended several other clauses of Section 145 Cr. P. C., it must necessarily follow that the narrow and literal construction of the proviso should prevail. It seems to me that the Legislature merely left the conflict as it was.

13. With respect, I am inclined to agree with, the reasons given by Subba Rao, C, J., in AIR 1955 Andhra 99 (K). There is no doubt that the maxims 'actus curiae neminem gravabit' and 'nunc pro tune' would apply in appropriate cases, but to apply them for the purpose of construing the second proviso to Sub-section (4) of Section 145 it must be clear that the delay was due to the act of the Court. Merely because a party apprehending serious threat to breach of peace from his enemy applies to the Magistrate for preventive action it does not necessarily follow that the Magistrate is bound to initiate a proceeding under Section 145 Cr. P. C.

Doubtless he is bound to do so if he is satisfied that there is apprehension of breach of peace. But for the purpose of that satisfaction the law does not say that a mere petition by a party is sufficient. In some instances it may be so. In others the Magistrate may feel that it may not be proper to accept the ex parte statement of a party and may call for a report from the Police. Once it is thus held that the duty of the Magistrate to initiate a proceeding under Section 145 (1) arises only after he is satisfied that there is apprehension of breach of peace, any previous action taken by him for the purpose of so satisfying himself, cannot be held to be delay caused by him.

That delay was due to the failure of the party to satisfy him about such apprehension of breach of peace. When the petition was sent to the Police for enquiry it was open to the party by frequent reminders to the Magistrate, to see that the police report was received promptly and that the Magistrate applied his judicial mind to the question as soon as possible. If the party would keep quiet and would not make up until the preliminary order is passed, by the Magistrate under Section 145 (1) Cr. P. C., he cannot say that the delay till that date was due to the Magistrate.

In the instant case I do not find any material on record to show that from 21st June 1954 till 24th August 1954 the opposite party took any active steps to remind the Magistrate about the urgency of taking action under Section 145 (1) Cr. P. C. He had clearly admitted in his petition dated the 21st June 1954 that on the 17th June 1954 he was forcibly dispossessed from Bundhen duli and Dharsa Uper three dull lands. He must have been aware that unless the preliminary order under Section 145 was passed on or before the 17th August 1954 he will not be able to get the benefit of the 2nd proviso to Sub-section (4) of Section 145. He should therefore have made repeated requests to the Magistrate to expedite the taking of preventive action. The delay in drawing up the proceeding was mainly due to his own fault.

14. The aforesaid maxims on which the Division Bench of the Madras High Court relied in AIR 1951 Mad 500 (C), would not apply where there are laches by the parties themselves. Thus in Evans v. Rees, (1840) 113 ER 774 at p. 777 (L), Lord Denman C. J., pointed out that though any delay unavoidably arising from the act of Court should not prejudice a party, this principle will not apply if the delay is imputable to the laches of the party applying. Again, in Grace v. Clinch, (1843) 114 ER 1026 at p. 1028 (M), it was observed that even if there was omission on the part of the Court to do its duty this principle would not apply

'if there was negligence on the part of the defendant in not taking care that the duty was done.'

15. There is no doubt about the principle of statutory construction that if the language of a provision of a statute is clear and unambiguous, it should be strictly construed, but it will be going too far to say that under the circumstances whatsoever, can the maxims 'actus curiae neminem gravabit' and 'nunc pro tune' apply where there has been delay in initiating a proceeding under Section 145 (1) Cr. P. C. I would however in agreement with (S) AIR 1955 Andhra 99 (K), hold that merely by filing a petition for preventive action under that Section or reporting the matter to the Police a party is not relieved from taking any further steps to persuade the Magistrate to draw up a proceeding.

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). To this extent. I would with great respect disagree with the view taken in AIR 1954 Orissa 183 (A), and agree with the view taken in AIR 1952 Orissa 26 (B).

16. But there may be circumstances where the delay in taking action is entirely due to the Court. For instance, if on receipt of a petition or report of the Police regarding apprehension of breach of peace in respect of immoveable property, the Magistrate, instead of drawing up a proceeding under Section 145 Cr. P. C., draws up a proceeding under section 144 Cr. P. C., restrains both parties from entering upon the property and makes some interim arrangement for the management of the property and then, on the expiry of the order under Section 144 converts the proceeding into one under Section 145, it will not be proper to hold that the relevant date for the purpose of the proviso to Sub-section (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.

Instances in which Magistrates, especially in this State in the first instance draw up a proceeding under Section 144 and then convert it into a regular proceeding under section 145 are numerous. There are doubtless clear decisions about the circumstances under which a proceeding under Section 144 Cr. P. C. should be started where there is dispute about immoveable property and about the circumstances in which the more appropriate course would be to initiate a proceeding under Section 145 Cr. P. C. But in respect of both proceedings the satisfaction of the Magistrate that there is apprehension of breach of peace is the foundation for taking action.

Once he reaches that satisfaction he is bound to take preventive action and if he takes action under Section 144 Cr. P. C., when the appropriate course would be to take action under Section 145 the delay must be attributed entirely to the Court and it should not prejudice any party. The aforesaid maxims would then apply with full force. Ray C. J., left this question open in his judgment in AIR 1952 Orissa 26 (B). I would however, with respect, agree with the decision in AIR 1954 Orissa 183 (A), to this limited extent, that where the proceeding under Section 144 Cr. P. C., is the forerunner of the subsequent proceeding under ' Section 145 the date of the order for the purpose of the proviso should be taken to be the date on which the proceeding under Section 144 was started.

17. Any other view would lead to absurd results. Thus Section 145 (4) says that the scope of an enquiry under that Section is to decide 'which of the parties was at the date of the order in possession of the property'. The expression 'at the date of the order' on a strict construction would be the date of the (preliminary order under Section 145 (1). If all the parties had been restrained from entering upon the land by a previous order under Section 144 it is obvious that on the date of the preliminary order under Section 145 (1) no party will be in possession of the land.

It will be in the possession of the Court through its own officers as an interim arrangement. Hence, if Sub-section (4) of Section 145 Cr. P. C. is construed literally, there will be nothing left for the Court to decide under that sub-section. When the Legislature used the expression 'at the date of the order' in that sub-section and also in the proviso it obviously assumed that on that date one of the contesting parties would be in actual possession. It did not provide for a contingency which may arise when through the Court's action under some other preventive provision of the Code or even by mere executive pressure no private party is in actual possession. A construction which would make the Section inapplicable to those instances where a proceeding under Section 144 precedes a proceeding under Section 145, cannot be supported.

18. If the previous decisions on the subject be carefully examined it will be noticed that there is really no serious conflict regarding this question. Thus in Joyanti Kumar Mookerjee v. Middleton, ILR 27 Cal 785 (N), the anomaly which would arise if a literal 'construction be put on the proviso to Sub-section (4) of Section 145 was pointed out. This decision was followed in Saddique v. Sheiksh Mohid, AIR 1930 Pat 556 (O) and in Gobordhan Das v. Suresh Chandra, AIR 1942 Pat 489 (P).

In Ray C. J.'s judgment in AIR 1952 Orissa 26 (B), this question was left open and I would agree with Panigrahi C. J., in AIR 1954 Orissa 183 (A), only to this limited extent. It is true that in a later Division Bench decision of the Patna High Court reported in Lakshmi Narayan Singh v. Jugeshwar Jha, AIR 1954 Pat 169 (Q), the previous Patna decisions referred to above were overruled and it was held that even though there may be a previous order under Section 144 Cr. P. C., prior to the initiation of the proceeding under Section 145 Cr. P. C., the proviso should be strictly construed. With respect I am unable to agree with such an extreme view.

19. The result is that the order of the lower Court declaring the possession of the opposite party. (1st party) in respect of the Sir Lands of Kharsal excluding Bundhen Dulj, Dharsa Uper three Duli and Jhua Bhag lands must be affirmed. In respect of those three items however, it must be held that the petitioner have proved that they obtained possession more than two months prior to the initiation of the proceeding under Section 145 and that consequently they should be maintained in their possession until evicted in due course of law. I anticipate no difficulty in locating those plots at the spot.

In the criminal case under Sections 447 and 147 I. P. C., the actual boundaries of the Bundhen Duli and Dharsa Uper three Duli lands have been given and the Magistrate should have no difficulty in getting them demarcated at the spot. Similarly, so far as the Jhua Bhag lands are concerned, I find a petition on record dated the 1st October 1954 in which the land from which paddy was cut away was described as plot No. 896. If the land includes some other plots of the complaint petition in the case under Sections 447 and 147 I. P. C., and 379 I. P. C. (C, I. 265/54) where the boundaries and other particulars relating to this land would have been given (sic).

20. The revision petition is thus allowed in part.

S. Barman, J.

21. I agree.


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