1. In this matter the Additional Sessions Judge of Hooghly has made a reference in respect of a proceeding under Section 145, Criminal P.C. It appears that certain sanyasis some years ago planted a banian tree on some land witch is now leased by the Government to the Howrah Amta Railway Company. In course of time a pucca plinth was built round the tree and later on (it is said somewhat recently) further encroachments were made on this land by the Sanyasis by putting up a hogla shed. On the 23rd September last the Chief Engineer of the Howrah Railway Company accompanied by police in the absence of the Sanyasis removed the hogla sheds and their structures recently built and took possession of the land again. It does not appear that they disturbed the plinth, the banian tree or the idols standing on the plinth. On the 25th the Sanyasis returned and with a crowd they proceeded to take possession again of the land on which the sheds stood before and other lands as well and put up a wall. This they were able to do by force and have since been in possession. On the 20th November proceedings were instituted in respect of this larger area of land under Section 145 Criminal P.C. The Magistrate who tried the case found that the Railway Company had been in possession within two months of the order; that is to say, they had all along been in possession of some of the lands and had been in possession of the rest of the land taken over on the 23rd from them till the 25th September - the date on which the Sanyasis came and put; up their new wall. He, therefore found that as they had been dispossessed within 2 months the Railway Company were entitled to have their possession declared under Section 145 Criminal P.C. This reference is made by the learned Judge on the ground that the possession taken on the 23rd September was forcible possession. He, therefore, recommends that the order made in respect of Section 145 should be vacated in respect of so much of the land as was not freshly taken by the Sanyasis when they recovered possession on the 25th September. Now, as to what took place on the 23rd September, it appears that in the absence of the Sanyasis, Mr. Das the Railway Engineer, with the help of the police released the land and incorporated it in the other lands of the Company. It is clear that the Sanyasis had no title to, this land at all and, therefore, it cannot be said that mere ouster of people with no title to the land without using any physical violence and removing of things which had no right to be on the land can be said to be an unlawful entry on the land. It appears to us, therefore, that on the 25th September, the Company were in lawful possession of the land. It is not denied that after that the Sanyasis came in force and with the help of a large crowd put up a will including within it land they had never claimed before. This they had absolutely no right to do. It was done within two months of the order and, therefore, the Magistrate was within his power in availing himself of the proviso (2) to Section 145. For this reason we cannot accept the reference.
2. There is another point. The reference is not in form. For it asks us not to quash an order under Section 145, Criminal P.C., but to confirm a part of the order and quash the rest. We know of no authority for a reference in this form. The reference, therefore, will be discharged.
3. I agree.