S.K. Ray, J.
1. This is a petition by the members of the second party in a proceeding under Section 145, Cr. P. C. to quash the order dated 28-3-66 passed by Sri K. M. Ram, Magistrate, 1st Class, Athagarh, declaring the possession of the first party in respect of 50.99 acres of Bhogra lands in village Kotapala.
2. One Dasarathi was the Sarbarakar in respect of these Bhogra lands which are the subject-matter of the dispute in the 145 proceeding. In the year 1955, these lands were kept under the direct management of the State for some time and then another Sarbarakar was vested with the responsibility of management of these lands. According to the petitioners, they were the Bhag tenants under the said Dasarathi and were paying rent to him during his lifetime. After his death during the period of State management thery were paying rent to the Sarbara-kar in de facto management. The first party was appointed Sarabarakar in respect of the lands in dispute on 24-2-65 and took delivery of possession on 21-3-65. At the commencement of the next agricultural season conflict between the parties started and case under Sections 143 and 447, I. P. C., was instituted by the first party against the members of the second party, on the allegation that they trespassed upon the land in dispute in which the petitioners were ultimately acquitted. Thereafter on 20-6-65, the police submitted a report for initiating proceedings under Section 144, Cr. P. C. against the petitioners and accordingly the Magistrate issued a prohibitory order under Section 144 on 28-6-65 restraining the petitioners from coming over the land. The case under Section 144 was registered as Misc. Case No. 15 of 1965.
3. While that case was proceeding, the Magistrate by his order dated 20-8-65 on a motion by the advocate for the first party converted the proceeding into one under Section 145, directing issue of notices under the said section. The date fixed for appearance of the parties and for filing of their written statements was 18-9-65. The material portion of his order is stated below :--
'..... and there is every justification to convert this to a proceeding under Sec. 145, Cr. P. C. Issue notice under Section 145, Cr. P. C. fixed for 18-9-65'.
No notice, however, was issued in pursuance of this order and nothing further seems to have been done in accordance with the requirements of Section 145, Cr. P. C. Another fact to be noted in this connection is that on the date of conversion of the proceeding under Section 144, Criminal P. C. into one under Section 145, Criminal P. C., only one member of the second party was present in person, viz., one Abuul Gaffar and no other member of the second party was present either in person or through counsel. So they had no knowledge of this conver sion of the proceeding.
4. The order-sheet in the miscellaneous case further shows that on 11-9-1965, a fresh preliminary order under Section 145, Cr.P.C., was issued by the Magistrate basing his satisfaction on the old police report dated 20-6-1965 in pursuance of which the order under Section 144, Cr.P.C., had been passed restraining -the second party members from going upon the land. The Magistrate recites in the said order that a dispute likely to cause a breach of the peace exists between the said parties and from the police report he was satisfied that this is a fit case for conversion to a proceeding under Section 145, Cr.P.C. Thus, it appears that this preliminary order was by way of converting the 144 Cr.P.C. proceeding to one under Section 145, Cr.P.C., when the order under Section 144, Cr.P.C., itself had lost its effect by operation of law, two months having elapsed from the date of its passing.
5. Section 144, Cr.P.C., empowers a Magistrate to act if there is sufficient ground for proceeding thereunder and covers cases of explosive character of disputes concerning any land threatening breach of peace. On receiving any such information, it is open to the Magistrate either to proceed under Section 144 or under Section 145, Cr.P.C. He may also issue an order under Section 144 in the first instance and convert its character to one under Section 145, Cr.P.C. Such conversions, though not strictly contemplated under the Code, have been judicially acknowledged as legal on the theory that Sec. 144, Cr.P.C. order should have been passed with a view to initiating proceeding under Section 145, Cr.P.C. Disputed questions of possession are not subject-matters of decision for the Magistrate acting under Section 144, Cr.P.C. Possession of property is assumed to lie with one party or the other and on that basis order under Section 144, Cr.P.C., is passed. Where disputed questions of possession appear to exist at the commencement of exercise of jurisdiction under Section 144, Cr.P.C., he may still pass a prohibitory order under that Section with a view to ultimately initiate proceeding under Section 145, Cr.P.C. Where during pendency of Sec. 144, Cr.P.C. order the Magistrate becomes satisfied that dispute likely to cause breach of peace concerning any land which originated the temporary order is likely to continue beyond its life of two months, he may pass a preliminary order by way of altering the order under Section 144, Cr. P. C. While so altering, or converting all other conditions of Section 145, Cr. P. C., must be satisfied and the date of conversion shall be the date of preliminary order under Subsection (1) thereof. Such conversion cannot in law, have the effect of changing the character of Section 144, Cr.P.C. proceeding from its very start so as to constitute the date of passing of Section 144, Cr.P.C. order as the date of preliminary order and such conversion if it is not an independent preliminary order, must take place on or before the very last day when the prohibitory order under Section, 144, Cr.P.C., is due to expire. The jurisdiction of the Magistrate is only to declare the actual possession of any party on a specified date which is always the date of preliminary order. Second proviso to Sub-section (4) of Section 145, Cr.P.C., merely incorporates a fiction of law by declaring that a person who has been wrongfully and forcibly dispossessed within two months next preceding the date of preliminary order as contemplated under Sub-section (1) of Section 145, Cr.P.C., may be deemed to be in possession on the date of preliminary order. It is not obligatory on the Magistrate to treat such a party as the person in possession on that specified date. It is discretionary with him and within the limits of that discretion he shall have regard to various circumstances of the case including whether exercise of such discretion will be aiding or delaying real justice. In view of the aforesaid legal position, as I conceive it to be, the order dated 11-9-1965 has no legal guarantee for its validity.
6. It appears from the order-sheet in Miscellaneous Case No. 17 of 1965 that there are two independent preliminary orders in respect of the same subject-matter in dispute and the Magistrate, it appears from his final order, is not quite sure about the date of the preliminary order with reference to which he has to decide the question of possession. He seems to have adopted two dates: one 20-8-1965 and the other 28-6-1965 or sixty days prior to that for the purpose of deciding the question of possession with reference to those dates. The Magistrate writes as follows:
'So far as this proceeding is concerned, notice under Section 144 was served on 28-6-1985 and the preliminary order under Section 145 was issued on 20-8-1965. Although there are the two crucial dates, it is to be ascertained as to which party was in possession of the subject-matter of dispute on 28-6-1965 or 60 days prior to that.'
These contain averments of facts beyond record and enunciation of a doctrine of law unwarranted by Section 145, Cr.P.C. If according to the Magistrate the date of preliminary order is 20-8-65, he ordinarily had no legal sanction to confine his enquiry as to possession with reference to 28-6-1965, which is the date of Sec. 144 order or 60 days prior to that and ignore, which, even . according to him, is the date of preliminary order. As already stated, no notice had been issued pursuant to the order of conversion passed on 20-8-1965 and his enquiry, even if confined to this date, would nave been bad in law. The Magistrate has thus misconceived the law and in so doing acted beyond his jurisdiction. He also seems to have ignored the second order passed on 11-9-1965 which appears to have Been acted upon. It is with reference to this date that notices have been issued to the parties, who filed their written statements and confined their evidence apparently with reference to this date. Therefore, due to misconception of the law, the Magistrate has decided the question of possession with reference to a date which can never be regarded as date of preliminary order while he issued notices to the parties directing their attention to 11-9-1965 as the date of preliminary order with reference to which the parties must obviously have confined their evidence. Thus, it is impossible to uphold the order of the Magistrate and it is accordingly quashed.
7. The basis of the Section 145, Cr. P. C. proceeding was the police report dated 20-6-1965 and now we are at the fag-end of March 1968. I am told that a proceeding under the Orissa Merged Territories (Vil-lage Officers Abolition) Act (Act 10 of 1963) in respect of these lands is pending. In this background, it would not be proper, after quashing the order, to send the case back to the Magistrate, for fresh enquiry after ascertaining the date of the preliminary order. This quashing, however, would not bar initiating another proceeding either under Section 144 or 145, Cr.P.C., if the situation so warrants in future.
8. The revision is accordingly allowed.