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Athiappa Gounder and ors. Vs. S.A. Athiappa Pandaram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Revn. Case Nos. 953 of 1964, 181, 499 and 821 of 1965, (Cri. Revn. Petn. Nos. 929 of 196
Judge
Reported inAIR1967Mad445; 1967CriLJ1650
ActsSpecific Relief Act - Sections 9; Code of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(1) and 145(4)
AppellantAthiappa Gounder and ors.
RespondentS.A. Athiappa Pandaram
Cases ReferredNagendranath Dey v. Sureschandra Dey
Excerpt:
.....dispossessed could get relief, should be literally and strictly constructed with reference to the date of the preliminary order, as mentioned in that proviso, or whether it should be liberally and equitably construed with reference to the date of the petition,;held, that the object of the proceeding under section 145 was to put an end to a dispute as to the immovable property so as to prevent a breach of peace. the power conferred on the magistrate was a limited one, namely, to make a temporary order regarding retention of possession on the basis of proved prior possession, irrespective of the legal rights and titles to possession. the preliminary order under section 145 (1) was the basis for the subsequent enquiry and the passing of the final order. before making the preliminary order..........s. 9 of the specific relief act, and if he fails to move the court within six months from the date of dispossession, he will lose his summary remedy and he will have to file a regular suit. thus if a party has been forcibly and wrongfully dispossessed more than two months prior to date of the preliminary order, his remedy is not under sec. 145 crl. p. c. which is intended only for the prevention of offences, but elsewhere.(10) we are of the opinion that the second proviso to sub-sec. (4) of s. 145 crl. p. c. should be successfully invoked only if the party has been forcibly and wrongfully dispossessed with two months prior to the date of the preliminary order and that there is no room for applying any fiction that the date of the preliminary order should be deemed to be the date of.....
Judgment:
(1) The question referred to the Full Bench is whether the period of two months mentioned in the second proviso to Sec.145(4) Crl. P. C. as the period within which a person forcibly and wrongfully dispossessed could get relief should be literally and strictly construed with reference to the date of the preliminary order, as mentioned in that proviso, or whether it should be liberally and equitably construed with reference to the date of the petition.

(2) There is conflict of judicial opinion on this question. The leading decision in favour of the liberal interpretation is the Bench decision of this court in C. Narayana v. K. Kesappa, which

refers to the conflicting decisions of this High Court on this question A Bench decision of the Andhra High Court in Padmaraju Subba Raju v. P. Koneti Raju, delivered by Subbu Rao C. J. as he then was, dissented from the above decision and took the other view based on literal interpretation of the proviso. As the earlier Bench decision of this High Court was rendered prior to the formation of the Andhra High Court, and was binding on that High Court, the question was referred to a Full Bench of the High Court in K. Venkataramiah v. Sitaramiah. (FB) and it relied on the later Bench decision of its own High Court and did not follow the earlier Bench decision of this Court. It held that the crucial date under the second proviso to sub-sec. (4) of Sec 14 Crl P.C., is the date of the preliminary order, that for the purpose of this proviso a specific period of two months next before the date of such order is fixed for invoking the fiction embodied in the proviso and that there is no room for applying any such fiction relating to the date of the preliminary order to the date of the petition under sub-sec. (1) of S. 145 Crl. P. C. In Subrana v. Kartika, the Orissa High Court and in Bhadramma v, Kotamraj, the Hyderabad High Court followed the

earlier bench decision of this High Court in ,

dissenting from earlier decisions of their own Courts to the contrary. The decision of the Hyderabad High Court is no longer good law after the Full Bench decision of the Andhra Pradesh High Court referred to above. A Full Bench of the Allahabad High Court in Ganga Bux Singh. v. Sukhdin, (FB) has also dissented from the Bench

decision of this High Court. In fact, it is clear from the Full Bench decision of the Andhra Pradesh High Court had dissented from the view expressed in the Bench decision of the Madras High Court. It is unnecessary to refer to all the decisions in detail, and it is sufficient to consider the principles on which they are based in order to decide the question referred to the Full Bench.

(3) Chapter XII of the Criminal Procedure Code, which contains Sec 145, is one of the Chapters in Part IV of the Criminal Procedure Code dealing with prevention of offences. The object of a proceedings under S. 145, Crl. P. C. is to put an end to a dispute as to immovable property so as to prevent a breach of the peace. In Nanhemal v. Jamil Ur. Rahman, 23 All LJ 41 = (AIR 1925 All 316) Mukerji J. said:

"an order under Chapter XII is more or less an executive order and it is designed to avoid a breach of the peace."

In Bhinka v. Charan Singh, the Supreme Court has held that the order of a Magistrate under S. 145 Crl. P. C. is merely a provisional police order based upon the fact of previous possession and it is made only for the purpose of preventing a breach of the peace, and being made irrespective of the rights of the parties, it cannot enable the person in whose favour it is made to resist a suit based on title. It was pointed out in that decision that the foundation of jurisdiction under S. 145 Crl. P. C. being only as apprehension of a breach of the peace, the power conferred on the Magistrate is a limited one, namely, to make a temporary order regarding retention of possession on the basis of proved prior possession, irrespective of legal rights and titles to possession.

(4) The above principles should be borne in mind in dealing with the question under reference. The preliminary order under S.145(1) Crl. P. C. is the basis for the subsequent enquiry and the passing of the final order. It should be noted that proceedings under S. 145 Crl. P. C. are taken on police reports, or on any other information which usually take the form of a petition by a private party. When an application is made to a Magistrate for action under Sec. 145 Crl. P. C. the usual practice is to send it to the police and get a report on the question whether there is any likelihood of a breach of the peace, though there is no specific provision in the section authoring such a procedure. Before making the preliminary order under S.145(1) Crl. P. C., the magistrate should be satisfied from the police report, or other information, that a dispute about immovable property exists and that it is likely to cause a breach of the peace. The object of a proceeding under S. 145 Crl. P. C. being the prevention of the breach of the peace supposed to be imminent, it should be the primary aim of the Magistrate making the enquiry to arrive at his decision with the utmost promptitude. In fact, sub-sec (4) of Sec. 145 Crl. P. C. requires that the enquiry should be concluded, as far as may be practicable, within a period of two months from the date of the appearance of the parties. But there is nothing in Sec. 14591) Crl. P. C. to justify the view expressed in , that the passing of a preliminary order should

immediately follow the presentation of the complaint, or the receipt of the police report. The preliminary order can be made only after the subjective satisfaction of the Magistrate that a dispute likely to cause a breach of the peace exists, and the crucial date is the date of the Magistrate's recording his satisfaction in his preliminary order. It is with reference to the said date that the Code contemplates an enquiry as to the possession of the parties and it is also the same date with reference to which the two months' period mentioned in the proviso has to be counted.

(5) The history of the legislation has been relied on in both the Bench decision of the Madras High Court in and of the

Andhra High Court in . But opposite conclusions have been reached as to the intention of the Legislature in introducing the proviso. In the corresponding sections of the old Criminal Procedure Codes of 1861, 1872 and 1882, there was no provision corresponding to the second proviso to sub-sec (4) of S. 145 Crl. P. C. fixing the date in relation to which the Magistrate has to make the enquiry and the proviso was, first enacted in 1898 evidently to avoid the anomaly pointed out by the Calcutta High Court in Katras Jherriah Coal Co. v. Subkrishta Daw and Co., (1894) ILR 22 Cal 297. At page 303 the learned Judge observed:

"But to hold that under such circumstances the Magistrate is precluded from enquiring into anything before the when he recorded his own proceedings, which he now tells us he ought to have done 13 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 our his high-handed and improper actions and this we cannot believe to have been the intention of the Legislature".

Under S.145(4) Crl. P. C. the Magistrate should decide who was in actual possession of the property in dispute on the date of the preliminary order. By virtue of the second proviso to sub-sec (4) of S. 145, Crl. P. C. a person who has been forcibly and wrongfully dispossessed within two months next before the date of the preliminary order is deemed, as it were, by a legal fiction to be in possession on the date of the preliminary order, though he did not actually have any such possession. With due respect to the learned Judge, Govinda Menon J., he appears to have strained the principle of the fiction too far in observing in that by such legal fiction the party

forcibly and wrongfully dispossessed should be deemed to be in possession not only on the date of the preliminary order, but also on the date of the petition. "Fictions of law" as observed by Lord Mansfield "hold only in respect of the ends and purposes for which they were invented. When they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth" (Morris v. Pugh, (1762) 3 Burr 1241 at p. 1243; See Broom's Legal Maxims 10th Edn. pages 81 and 82). It is not open to this court to add to the legal fiction created by the second proviso to sub-sec (4) of S. 145 Crl. P. C. any other fiction that the possession of the party forcibly and wrongfully dispossessed should be deemed to be actual possession even on the date of the petition and not merely on the date of the preliminary order as mentioned in the proviso. Thus the history of the legislation does not really support the reasoning of the decision in .

(6) The ratio of the decision in is based on the

maxim actus curiae neminem gravabit (act of court shall prejudice no man) and nunc pro tunc (now for then). According to the decision no appreciable time should elapse before the presentation of the complaint or the receipt of the police report and the passing of the preliminary order and that the date on which the party moved the Magistrate should be taken as the crucial date. This view has been stressed at some length in the decision in , by Panigrahi C. J. But we have already pointed out that there is nothing in the Code to show that the Magistrate is bound to pass the preliminary order immediately on receiving a complaint, or a police report, or other information with regard to a dispute regarding immovable property and even before being satisfied about the likelihood of its causing a breach of the peace. Such a preliminary order can be passed only on the subjective satisfaction of the Magistrate as required under S.145(1) Crl. P. C. The Legislature has fixed the date of the preliminary order as the crucial date not only for the purpose of ascertaining as to who was in possession of the property in dispute but also for determining the two months period within which the forcible and wrongful dispossession took place. In fact, S. 146, Crl. P. C. contemplates the circumstances under which a magistrate could refer the dispute to a civil court to competent jurisdiction to secure a decision as to who was in possession of the property in dispute on the date of the preliminary order. We would not be justified in introducing the date of the petition as the crucial date, instead of the date of the preliminary order, mentioned in Sec. 145 Crl. P. C. We have already pointed out that proceedings under Sec. 145 Crl. P. C. are taken on police report or other information and not necessarily on a petition filed by the affected party. It has been rightly pointed out in that the decision 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 a breach of the peace was imminent on a particular date when he makes the preliminary order.

(7) The main criticism against the literal construction of the language of the proviso is that it would put a premium on dishonest and cantankerous parties who can always see to it that the enquiry is delayed and that the party dispossessed is ultimately deprived of the benefit of the legal fiction created by the proviso. This view was expressed by Panigrahi C. J. in . In Krishnamraju v. Chintala Swami Naidu, AIR 1927 Mad 816(1), Wallace J in giving a liberal interpretation to the proviso, observed as follows:

"I am not prepared at present to subscribe to the proposition that a party taking possession by force must be retained in possession of, owing to delay, after the dispossessed party has asked the court to take action, on the party of the court taking action, over two months have elapsed before the court finally makes up its mind to issue a preliminary order".

This observation was quoted with approval by Devadoss J. in Srinivasa Reddi v. Dasaratharama Reddi, ILR 52 Mad 66 at p. 68= (AIR 1929 Mad 198 at p. 198), where he expressed his view that--

"a reasonable interpretation ought to be placed upon the proviso and not a literal interpretation which would defeat the very object of Sec.145 (4) which relates to dispossession of immovable property".

But before applying this equitable principle, it would be necessary to ascertain the acts of a court which prejudiced a party, to apportion the blame between the court and a party and to fix the period of delay attributable to the court's act. Subba Rao C. J. as he then was, point out in :--

"in such an enquiry, it cannot be promised that in every case, the delay caused by the court, if added would synchronies with the date of the application".

and observed that it would be futile enquiry. We have already pointed out how the proviso was added to remedy the anomaly pointed out by the Calcutta High Court.

(8) The maxim actus curiae neminem gravabit (act of the court shall prejudice no man) is founded upon justice and good sense and affords a safe and certain guide for administration of the law. It is clear from Broom's Legal Maxims, 10th Edn. pages 73 to 75 under what circumstances the principle of the maxim could be invoked by a party. Thus the following passage at page 73 of the Book show the scope of the maximum and illustrates how and when a party could invoke it.

"In virtue of if, were a case stand 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 be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case and, therefore, if one party to an action die during a curia advisers vault, judgment may be entered nonc pro tunc, for the delay is the act of the court, for which neither party should suffer".

Again at page 74 of the book it is stated that the power of the court to enter judgment nunc pro tune is a power to common law and it does not depend upon the statute and it is adopted in accordance with the ancient practice of the court in order to prevent prejudice to a suitor from delay occasioned by the act of the court. Where, however, the delay is not attributable to the act of the court, the above maxim does not apply. It is clear from page 75 of the same book that it is the duty of a Judge to try the causes set down for trial before him, and yet, if he refused to hold his court, although there might be complaint in Parliament respecting his conduct, no action would lie against him and that in such a case a wrong might be inflicted by a judicial tribunal, for which the law could supply no remedy. Thus the maxim could be invoked and applied in individual cases to a party who has done all he should do under the statute and is prejudiced solely by the delay or mistake could be invoked generally to interpret the second proviso to Sub-sec. (4) of Sec. 145 Crl. P. C. in a liberal manner. In other words, it is not possible to use the maxim to enlarge the period fixed under the proviso by applying the fiction nunc pro tunc and treating the preliminary order made on a latter date as one passed on the date of the petition.

(9) The second proviso to sub-sec (4) of S. 145 Crl. P. C. is clear and unambiguous. As pointed out in Nagendranath Dey v. Sureschandra Dey, AIR 1932 P. C. 165 at p. 167--

"The fixation of period 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 that strict grammatical meaning of the words is there Lordships think, the only safe guide".

We have already pointed out that the object of S. 145 Crl. P. C. is only to prevent a breach of the peace resulting from disputes about immovable properties and not to finally decide the rights of the parties. The delay and hardship which might result in some cases in consequence of a literal and strict interpretation will not be a justification for not giving effect to the plain words of the section. A person who is unlawfully dispossessed from his immovable property has a summary remedy under S. 9 of the Specific Relief Act, and if he fails to move the court within six months from the date of dispossession, he will lose his summary remedy and he will have to file a regular suit. Thus if a party has been forcibly and wrongfully dispossessed more than two months prior to date of the preliminary order, his remedy is not under Sec. 145 Crl. P. C. which is intended only for the prevention of offences, but elsewhere.

(10) We are of the opinion that the second proviso to sub-sec. (4) of S. 145 Crl. P. C. should be successfully invoked only if the party has been forcibly and wrongfully dispossessed with two months prior to the date of the preliminary order and that there is no room for applying any fiction that the date of the preliminary order should be deemed to be the date of the petition and to give relief even to persons forcibly and wrongfully dispossessed within two months prior to the date of the petition is overruled.

(11) The reference are answered accordingly.

(12) Order accordingly.


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