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Chunchu Narayana and ors. Vs. Karrapati Kesappa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. No. 566 and Cri. Revn. Petn. No. 840 of 1950
Judge
Reported inAIR1951Mad500; (1951)IMLJ102
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145 and 145(4)
AppellantChunchu Narayana and ors.
RespondentKarrapati Kesappa
Appellant AdvocateN. Ramamohan Rao, Adv.;Asst. Public Prosecutor
Respondent AdvocateM. Krishna Rao, Adv. for ;M.S. Ramachandra Rao and ;I. Balayya, Advs.
DispositionRevision dismissed
Cases Referred and Srinivasa Beddi v. Dasaratharama Reddi
Excerpt:
criminal - restoration of possession - sections 145 and 145 (4) of criminal procedure code, 1973 - petitioner aggrieved by order allowing respondent to take possession of land in dispute and retain till competent civil court decides disputes between parties - once a preliminary order under section 145 (1) passed it should be deemed to have been passed instantly on receipt of complaint of police report - period to be reckoned backwards of dispossession must be period of two months from date of complaint - in case party has been forcibly and wrongfully dispossessed within two months next before date of preliminary order then he should be treated as if he had been in possession on such date - held, respondent allowed to take possession of land in dispute and retain till competent civil court.....govinda menon, j. 1. by his order in m. c. no. 13 of 1950 dated 14-3-1950, the district magistrate of gooty held that the respondent in this court, should be allowed to take possession of the land in dispute and retain the same till a competent civil court decides the dispute between the parties; and aggrieved by that order the petitioners have moved this court to revise the order of the district magistrate.2. the respondent presented a petition under section 145, criminal p. c., before the district magistrate of gooty on 15-10-1949 and it was alleged that on 3-10-1949 he. had been wrongfully dispossessed by the opposite party and wanted the court to decide the question of possession and put him back in possession. a preliminary order under section 145 (4), criminal p.c., was passed on.....
Judgment:

Govinda Menon, J.

1. By his order in M. C. No. 13 of 1950 dated 14-3-1950, the District Magistrate of Gooty held that the respondent in this Court, should be allowed to take possession of the land in dispute and retain the same till a competent civil Court decides the dispute between the parties; and aggrieved by that order the petitioners have moved this Court to revise the order of the District Magistrate.

2. The respondent presented a petition under Section 145, Criminal P. C., before the District Magistrate of Gooty on 15-10-1949 and it was alleged that on 3-10-1949 he. had been wrongfully dispossessed by the opposite party and wanted the Court to decide the question of possession and put him back in possession. A preliminary order under Section 145 (4), Criminal P.C., was passed on 25-1-1950, that is more than two months not only after the date of dispossession but after the date of presentation of the petition. On the finding that the petitioner in the lower Court was entitled to possession, the learned District Magistrate, following two decisions of this Court, held that the two months period contemplated in the proviso to Section 145 (4), Criminal P. C., should be deemed to be from the date when the petition was presented and therefore directed restoration of possession to the respondent in this'Court. Somasundaram J. before whom the criminal revision petition first came on for hearing, finding that there is a conflict of decision on this point in this Court referred the matter to be heard by a Bench.

3. Section 145 (1), Criminal P. C., contemplates that when any of the classes of Magistrates mentioned therein is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of hia being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate and to put in written statements of their respective claima as respects the fact of actual possession of the subject of dispute. This is the preliminary order contemplated by the section and when such preliminary order has been passed and served in the manner provided by the Code, on the date on which the petition stands posted for hearing, the Magistrate shall, without reference to the merits of the claims of any of such parties to a right to possess the subject of dispute, peruse the statements so put in, hear the parties, receive all such evidence as may be produced by them, consider the effect of such evidence, take such further evidence as he thinks necessary, and, if possible, decide whether any and which of the parties was in possession at the date of the preliminary order passed by him; and the proviso lays down that if it appears to the Magistrate that any party was, within two months next before the date of such order, being forcibly and wrongfully dispossessed, he may treat the party so dispossessed, as if he had been in possession at such date. The words 'at the date of the order' in Sub-section (4), refers to the order contemplated in Sub-section (1), i. e., the preliminary order and the meaning to be given to the words 'the date of such order' in the proviso, is the question for consideration.

4. In Krishna Raju v. Chintalaswami Naidu : AIR1927Mad816 , Wallace J. was not prepared to subscribe to the proposition that a party taking possession by force must be retained in possession if, owing to delay after the dispossessed party has asked the Court to take action, on the part of the Court taking action, over two months have elapsed before the Court finally makes up its mind to issue a preliminary order. Therefore the learned Judge was inclined to hold that an aggrieved party coming to Court with a complaint of having been dispossessed and invoking the Court to apply the provisions of Section 145, Criminal P. C., cannot be made to suffer because the Court, for some reason or other, delayed the passing of the preliminary order referred to in Sub-section (1) of Section 145. This decision was followed by Devadoss J. in Sri-nivasareddi v. Dasaratharama Reddi, 52 Mad. 66: A. I. R. 1929 Mad. 198: 80 Cr. L. J. 144 where the learned Judge held that when an application is made to a Magistrate under Section 145, Criminal P. C., by a person complaining of forcible dispossession, if, for no reason or fault of the applicant, the Magistrate is not able to pass a preliminary order within two months of the dispossession, the party complaining should not, on a proper construction of the first proviso to Clause (4) of Section 146, be made to suffer by reason of such delay on the part of the Magistrate, and is entitled to an order under that section. The learned Judge further held that though the words of the proviso are capable of interpretation, that the dispossession must be within two months of the preliminary order, yet the intent and object of the section must be taken into consideration before such interpretation is put upon it. The learned Judge referred to and quoted with approval the observations of Wallace J. in the case referred to above.

5. In Ammanna Sastri v. Sitaramayya, 49 M. L. W. 473, Lakshmana Rao J. following Srinivasa Reddi v. Dasaratharama Reddi, 52 Mad. 66 : A. I. R. 1929 Mad. 198 : 30 Cr.L.J. 144, held that in a case where a party was dispossessed on 14-4-1938 and an application under Section 145, Criminal P. C., was presented on 12-5-1938, and the preliminary order was passed only on 15-6-1938, despite the fact that the preliminary order was passed on 15th June, there should be an order under Section 145 (6), Criminal P. C., declaring the petitioner to be entitled to possession. As against these three cases taking the view that the intent and object of the section should be taken into consideration and that the delay of the Court in satisfying itself and passing the preliminary order should not prejudice the petitioner if in fact the petition was presented within two months of the dispossession, the opposite view was formulated at first by Jackson J. in Pichai Moopan v. Narayanaswami Moopan, 1931-4 M. Cr. C. 168 and by Happell J. in Arunachala, Goundan v. Chinnadorai : (1945)1MLJ210 . In the earlier case Jackson J. referred to the decisions of both Wallace and Devadoss JJ. and dissented from the conclusions arrived at in those cases. The learned Judge held that where the Legislature has fixed a definite period for interference in these quasi civil disputes, Courts ought to be guided by it, and if the interpretation of limitation periods is to be reasonable and not literal, there can be no certainty or finality. According to the learned Judge the period of two months is quite arbitrary and the Court should, without reference to any other consideration, abide by that rule even if, for no mistake or fault of the party complaining, the preliminary order was not passed immediately after the presentation of the petition. Happell J. in Arunachalam Goundan v. Chinnadorai : (1945)1MLJ210 , rejected the contention that Proviso l to Section 145 (4) need not be construed strictly and that the period of two months may, in proper circumstances, be ex-tended in order that substantial justice shall be done between the parties. The learned Judge did not agree with Devadosa J. but upheld the opinion expressed by Jackson J. in Pichai Moopan v. Narayanaswami Moopan, 1931-4 M. Cr. C. 168 as giving effect to the plain words of the statute untrammelled by any consideration of equity. In view of these divergent opinions expressed in the contradictory line of authority, we have now to decide to which voice we ought to hearken. But before the matter is examined in some detail, it is advantageous to refer to the decisions of other Courts also cited before us.

6. Stuart C. J. in Emperor v. Baijnath, 5 Luck. 440 : A. I. R. 1929 Oudh 526 : 31 Cr. L. J. 678 dissented from the opinion of Deva-doss J. and held that where it is found that a man has been dispossessed more than two months next prior to the date of the preliminary order, he cannot be treated as though he were in possession on the date of the preliminary order. The learned Chief Judge was unable to agree with Devadoss J. in extending the period of two months. He further goes on to add that the words 'two months from the date of the order' should mean two months from the date of the preliminary order and not two months from the date of the complaint. With the view of Stuart C. J. just now referred to Rachhpal Singh J. of the Allahabad High Court concurred in Meharban Singh v. Bhola Singh, 57 ALL. 488 : A. I. R. 1936 ALL. 35 : 36 Cr. L. J. 102. The learned Judge held that a person who has been forcibly dispossessed more than two months before the date of the preliminary order cannot derive any benefit under Section 145. Where, therefore, the Magistrate finds that dispossession took place more than two months before the date of the preliminary order, then the only course open to him is to maintain the possession of the other party. The learned Judge also referred to Emperor v. Parashram where Macnair Offg. J. C. laid down that a person complaining of forcible dispossession under Section 145, Criminal P. C., cannot claim the benefit of that section if the dispossession took place more than two months prior to the date of the preliminary order under Clause (4) of Section 145. Here again reference was made to Srinivasa Reddi v. Dasaratharama Reddi, 52 Mad. 66 : A. I. R. 1929 Mad. 198:30 Cr. L. J. 144 and a note of dissent was sounded from that judicial pronouncement.

7. Our attention was also drawn to the observations of Lobo J. C. and O'Sullivan J. in Mohammad Ali v. Shamsul Haq, A. I. R. 1940 Sind 33 : 41 Cr. L. J. 486, in the following terms :

'The inquiry under Sub-section (4) is as to possession on the date of the preliminary order under Sub-section (1) and the words of the proviso 'within two months next before the date of such order' are precise and unambiguous. It is difficult to see how these words afford any scope for holding that in those cases where a Magistrate does not make a preliminary order within two months of the dispossession, the party complaining is still entitled to proceed under Section 145, Criminal P. C. Undoubtedly, it ia unfortunate that a party should be prejudiced by delay in making of a preliminary order under Sub-section (1) especially if that delay is in any particular case attributable to the ineptitude or want of integrity of the Magistrate, but we cannot concede that any interpretation at variance with the plain words of the section is justified.'

The learned Judicial Commissioners in Sind disapproved of the decision in Srinivasa Beddi v. Dasaratharama Beddi, 52 Mad. 66: A. I. R. 1929 Mad. 198 : 30 Cr. L. J. 144, but approved of the decision of Eachhpal Singh J. in Meharban Singh v. Bola Singh : AIR1935All35 . They also referred to the observations of the Privy Council in Narayanasami v. Emperor , where Lord Atkin says that when the meaning of the words is plain, it is not the duty of the Courts to busy themselves with supposed intentions.

8. Mr. N. Rammohan Rao for the petitioner strenuously contends that the line of authority exemplified by Chinchilada Krishna Raju v. Chintala Swami Naidu : AIR1927Mad816 , Srinivasa Reddi v. Dasaratharama Reddi, 52 Mad. 66 : A. I. R. 1929 Mad. 198: 30 Cr. l. J. 144 and Ammanna Sastri v. Sitaramayya, 49 M. L. W. 473, should not be preferred not only in view of the dissenting note of Jackson and Happell JJ. but also because of the concurrence with those dissenting views by single Judges of Lucknow, Nagpur and Allahabad. The learned counsel points out that where the plain words of the statute are clear and explicit, the object and intendment of the Legislature has no place in the construction of the section. Moreover, the Court should not be led away by considera-tions of hardship when the Legislature has laid down an inflexible period for the purpose of limitation. In other words, whatever might be the object as might be gatherable from the other provisions of the statute, the plain language of the section should override any other consideration and should alone guide the Court in coming to a conclusion on a matter like this. For this argument the learned counsel referred us to the dicta contained in Para. 637, p. 499, Halabury's Laws of England, Halisham Edn., Vol. 31, where we find the following passage:

'It is the duty of Judges to give fair and full effect to statutes without regard to the particular consequence in the special case (as, for instance the escape of tax payer from payment of tax for purely technical reasons), and not to speculate on the reasons which led'the Legislature to adopt a particular form of enactment, or indulge in conjecture either that Parliament entertained a purpose which, however natural, was not embodied in the words used or as to what Parliament would have done if a particular case had been present-ed to its notice, for it may be presumed that the framers of a statute contemplated matters of ordinary occurrence.'

Reference was also made to Para. 556, p. 460 of the same book where, in considering the question as to how far a heading or title should beutilised in construing a statute, an opinion is expressed that it may be so considered in determining the scope of the enactment provided that nothing contained in it may be taken to contradict dear and unambiguous language in the enactment itself.

9. Learned counsel was at pains to refer to a decision of Jactcson and Cornish JJ. in Kalesha v. Emperor A. I. R. 1931 Mad. 779 : 33 Cr. L. J. 132, where the learned Judges were of the view that the Court's sole function is to interpret the language which the Legislature has employed and very probably where the intention and the language do not coincide, the Courts are only concerned with the language. On the other hand, Mr. M. S. Krishna Rao for the respondent contends that Sub-section (l) of Section 145, Criminal P. C., contemplates the passing of the preliminary order as soon as the Court is satisfied that a disturbance likely to cause a breach of the peace is about to occur and, therefore, when the Court, after receiving a complaint or police information passes a preliminary order on being satisfied regarding the necessity, such satisfaction should be deemed to relate back to the state of circumstances existing on the date when the complaint was presented or the police report was received and, therefore, though the actual preliminary order is of a subsequent date, it should be deemed to be as if the same was passed when the complaint or the police report was received, because the Court cannot take into consideration conditions and circumstances that occurred between the presentation of the complaint or the receipt of the police report and the actual passing of a preliminary order. 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 of 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. The learned Public Prosecutor also supports the contention of the respondent and relies upon the words 'he shall make an order in writing' and urges that the making of a preliminary order necessarily follows from the satisfaction of the Magistrate. It is the duty of the Magistrate to pass the order immediately he receives the complaint or the police report because the object of the section itself is to prevent breaches of the peace as a result of a dispute concerning land or water. The primary object of the section is the prevention of a breach of public peace arising in respect of a dispute relating to immoveable property and such being the case, according to the learned Public Prosecutor, a proper interpretation of Sub-section (1) of Section 145, Criminal P. C., is that the Magistrate should not lose any time in passing a preliminary order after receiving the complaint or the police report. In this connection, it is instructive to look at the history and progress of the legislative provisions which have culminated in the passing of Section 145 in the Criminal P.C., 1898. The first proviso to Sub-section (4) of Section 145, Criminal P. C., that if any party has been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order, then he should be treated as if he had been in possession on such date, was not presented in Section 318 of the Code of 1861. When the Code was re-enacted in 1872, Section 818 came to be Section 580. Even there, there was no such proviso. Likewise, there was no such proviso in Section 145 of the Code of 1882. This proviso was first enacted in 1898. The relevant words of Section 318 of the Code of 1861 were as follows:

'The Magistrate or other officer shall, without reference to the merits of the claim of any party to a right of possession, proceed to enquire which party is in possession of the subject of dispute, and after satisfying himself upon that point, shall record a proceeding declaring the party whom he may decide to be in such possession to be entitled to retain possession until ousted by due course of law, and forbidding all disturbance of possession until such time.'

The similar provision in Section 530 of the Code of1872 was as follows :

'Such Magistrate shall, without reference to the merits of the claims of any party to a right of possession, proceed to inquire and decide which party is in possession of the subject of dispute. After satisfying himself upon that point, he shall issue an order declaring the party or parties to be entitled to retain possession until ousted by due course of law, and forbidding all disturbances of possession until such time.'

While the Code was in this state, a decision of the Calcutta High Court in Katras Jherriah Coal Co. v. Sibkrishta Daw & Co., 22 Cal. 297, was to the effect that it was impossible to lay down any hard and fast rule which may be applicable to all cases as to the exact point of time to which an enquiry under Section 145 must be directed, and the time at which possessionmust be found in one party or the other must be governed by the facts of each particular case. It was further observed that to hold that a Magistrate is precluded from enquiring into anything before the date when he actually commenced his own proceedings might, in some oases, lead to a person who has been acting in an unwarrantable manner misusing the process of the law to enable him to carry out a highhanded and improper scheme, which could never have been the intention of the Legislature. In that case one of the parties to the dispute had been dispossessed fourteen days prior to the commencement of the proceedings and the learned Judges held that such dispossession will not give the wrongful possessor legal possession of the property in order to be held entitled to retain possession. At p. 303 of the report the following passage occurs;

'But to hold that under such circumstances the Magistrate is precluded from enquiring into anything before the date when he recorded his own proceedings, which he now tells us he ought to have done thirteen days before, is, we think, to allow a person who has been acting in an unwarrantable manner to misuse the process of the law to enable him to carry out his high-handed and improper scheme, and this we cannot believe to have been the intention of the legislature.'

There is an earlier decision of the Calcutta High Court in In the matter of the petition of Mohesh Chunder Khan, 4 Cal. 417, to the effect. It was when the State of the case law was such, 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 petition he was not in possession. This shows that the proviso itself is the result of a legal fiction because physically the successful party was not in possession on the date of the presentation of the petition or the preliminary order; but 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 Magistrate 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 peace existed.If the Magistrate is not justified in taking time to pass a preliminary order, then even if the time mentioned in the order is of a subsequent date, it should be deemed to have been passed immediately after the receipt of the police report or the other information. It is in such circumstances that the well known maxim actus curiae neminem gravabit, an act of the Court shall prejudice no man, has to be applied. In Broom's Legal Maxims, 10th Edn., at p. 73 we find the following passage :

'Actus curiae neminem gravabit..... an actof the Court shall prejudice no man. This maxim 'is founded upon justice and good sense ; and affords a safe and certain guide for the administration of the law.' In virtue of it, where a case stands over for argument on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to bo prejudiced by that delay, but should be allowed to enter up his judgment retrospect tively to meet the justice of the case ; and, therefore, if one parby to an action die during a curia advisari vult, judgment may be entered nunc pro tune, for the delay is the act of the Court, for which neither party should suffer.'

In Wharton's Law-Lexicon, 13th Edn., at p. 603 the meaning of the expression nunc pro tunc is given as follows :

'A proceeding taken now for then, i. e., the proper time when it should have been taken; for example, special leave granted at the hearing to cross-appeal against an order for a new trial..... As to entering judgments and orders nunc pro tune, see Order 52, Rule 15.'

We may also refer in this connection to the observations of the Judicial Committee in Hardeo Bux v. Jawahir Singh, 3 Cal. 522 : 4 I. A. 178 P. C., to the following effect :

'When the preliminary objection was made their Lordships recommended the appellant to present a petition for special leave to appeal, which was accordingly done, and special leave was granted. In order to avoid delay and expense, the Court suggested that the case should be argued nunc pro tune, and. that course was assented to by the learned counsel on both sides and adopted.'

In our opinion the maxim nunc pro tunc or 'now for then' should be applied to the facts of the present case.

10. In Evans v. Bees, (1840) 113 E. R. 774 : 12 Ad. & E. 167, Lord Denman C. J., observes as follows :

'It is a power at common law, and by the ancient practice of the Court, to prevent an unjust prejudice to the suit or by the delay unavoidably arising from the act of Court, and has been uniformly exercised, unless the delay is imputable to the laches of the party applying. The effect of the judgment, when entered. may depend on the statute .....; but the power toenter it does not.'

That this has been laid down as the correct law is evident from a very early case reported in Butler and Baker's case, (1591) 8 Co. Rep. 25a : 76 E. R. 684. In dealing with fictions of law,this ancient case rules that fictions of law are only of necessity and for avoidance of an inconvenience.

11. By way of analogy, it is useful to refer to Section 22, Limitation Act, which speaks of the effect of substituting or adding a new plaintiff or a defendant. Sub-section (1) saya that where, after the institution of a suit, a new plaintiff or defendant ia substituted or added, the suit shall, aa regards him, be deemed to have been instituted when he was so made a party. In construing the worda 'so made a party,' a Bench of this Court in South Indian Industrials Ltd. v. Narasimha Rao, 50 Mad. 372 : A. I. R. 1927 Mad. 468, held that where the High Court, after setting aside an order of lower Court refusing to add a party, added a party in revision, the order of the High Court adding a party as a defendant should, for purposes of limitation, be deemed to have taken effect not merely on the date when it should have been made by the lower Court if it had taken a correct view of the position but on the date when the plaintiffs application wax presented to the trial Court. What happened there was that when an application to add a party as defendant was made there was no completed period of limitation in his favour. But by the time the High Court set aaide the order of the trial Court refusing to make him a party, the suit againat him would have become time-barred. The learned Judges Kumaraswami Sastri and Reiley JJ., held that the adding of the party should be deemed to have taken effect from the date when the petition for adding was presented. At p. 376 in the judgment of Reiley J., we find the following passage :

'It appears to me to be obviously the right principle to adopt in the matter, as otherwise, though an application might be made in time, as in this case, by the dilatoriness of the Court or by the manoeuvres of the opposite party or by a mistaken decision of the Court, which had to be put right on appeal or revision, the order to which party applying was entitled might not be made until the suit had become time-barred, and it would be unreasonable to leave the party who had applied in good time at the mercy of such chances. It is contrary to one of the clear principles of the Law of Limitation that a diligent party who has come to Court with his suitor his application within the period prescribed should be defeated because the Court for some reason cannot or does not give him his relief within that period. The heavy penalty for exceeding the arbitrary periods of limitation is to be counterbalanced by the assurance of safety when within them.'

It will be noticed that Section 22, Sub-section (1), Limitation Act, which has been extracted above states that the order should take effect from the time when he iS made a party. Even in such a case in South Indian Industrials Ltd. V. Narasimha Rao, 60 Mad. 372 : A. I. R. 1927 Mad. 468 this Court has held that he should be deemed to have been made a party from the-date of the presentation of the petition.

12. The learned counsel for the petitioner says that the words of Sub-section (1) of Section 22 are no ad idem with the words of the proviso in that in the former the expression 'the date of the order' does not appear. Even where such an expression as 'the date of the order' appears in a statute, this Court has taken the view that the construction to be put upon the term should be an equitable one and not a very literal one. In In:re Krishnamurthi, I.L.R. (1942) Mad. 9 : A. I. R. 1942 Mad. 690 : 44 Cr. L. J. 88 , a Full Bench in interpreting the expression 'within two months from the date of such order' in Section 23, Press (Emergency Powers) Act, XXIII [23] of 1931, held that the expression should be understood not in the literal sense as when the order is made and dated but in broader sense that the order must be read as being a notified order. What happened there was that the Provincial Government passed an order on a particular date but did not notify the keeper of the press of that order for sometime. An application under Section 23 of the Act was made within two months of the notification of the order but more than two months from the date when the order was passed. The Full Bench held that if the words 'within two months from the date of the order' are construed strictly then, if the Government omitted to notify the order until two months had elapsed, the aggrieved party would have no remedy at all. It is the duty of the Court to interpret a statute according to the ordinary meaning of the words used unless this would lead to a manifest absurdity. Likewise, in the present case, if a person who has been wrongfully and illegally dispossessed files a complaint before the Court and the Court does not pass a preliminary order within two months, then he will be deprived of any remedy at all by resorting to Section 146, Criminal P. C.

13. The Sind case mentioned supra takes note of the fact that the Code contemplates the passing of a preliminary order without any delay after the receipt of the police report or the information. Sub-section (1) of Section 145 does not contemplate any sustained enquiry before the making of the preliminary order. The condition prescribed is that the Magistrate should be satisfied from the police report or other information as to the necessity of action and since the whole purpose of the section is to prevent immediately a breach of the peace, it is very necessary that there should be no delay in passing the preliminary order by the Magistrate undertaking an enquiry for some time. On the other hand, what is contemplated is the passing of an emergent order if the Magistrate is satisfied from a perusal of the police report or from other information which he has got that it is necessary to take action. 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 tunc it is just that the preliminary order should be deemed to have been made on an earlier date. That the passing of a preliminary order should immediately follow the presentation of the complaint or the receipt of the police report does not seem to have been emphasised in the decisions of Wallace J., Devadoss J. or Lakshmana Rao J. referred to supra and if that basic principle is clearly understood, then there will be no difficulty in concluding that the time taken for passing the preliminary order should not prejudice the party who has been wrongfully dispossessed. The decisions in Pichai Moopan v. Narayanasami Moopan, 1931-4 M. Cr. C. 168 and Arunachala Goundan v. Chinnadorai : (1945)1MLJ210 are therefore not good law.

14. In case under consideration the learned Magistrate has followed Chinchiladu Kri-shnamraju v. Chintalaswami Naidu, A. I. R. 1927 Mad. 616 : 28 or. L. J. 782 and Srinivasa Beddi v. Dasaratharama Reddi, 52 Mad. 66 :A. I. R. 1929 Mad. 198 : 30 Cr. L. J. 144 and came to the conclusion that the dispossession must be deemed to be within two months next preceding the date of the preliminary order and that being so, we cannot say that he has erred in any respect. The criminal revision case is dismissed.


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