S. Murtaza Fazl Ali, J.
1. This is a reference by the Sessions Judge Srinagar for setting aside the order of attachment passed by the trial Magistrate under Section 145 Sub-clause 4 of the Code of Criminal Procedure. As the case involved substantial questions of law on which an authoritative pronouncement of this Court was necessary, it was referred to us by a Single Judge, who had heard the case in the first instance.
2. We have heard the counsel for the parties on length not only on the question as to whether or not the attachment order should be vacated but also on the question as to whether or not the entire proceedings being utterly misconceived are tit to be quashed.
3. The facts leading to the present reference are as follows:-
On 25-6-1962, the non applicants made an application before the District Magistrate Anantnag for taking action tinder Section 145 Cr. P. C. against the petitioners with respect to 22 Kanals and 11 Marias of land being Khasra Nos. 297, 493, 705, and 764 situate at Village Chawalgam Tehsil Kulgam. The District Magistrate Anantnag sent the application to the police for a report. The police report was submitted on 3-7-1962 and on 21-7-1962, the petitioners before the Sessions Judge appeared before the trial Court and objected to the proceedings being drawn tip Under Section 145 Cr. P. C. on the ground that a similar application submitted by the applicants before the trial Court .was dismissed by the Munsiff Magistrate Kulgam. Ultimately on 7-8-1962, the learned Magistrate drew up proceedings and ordered attachment Under Section 145 Cr. P. C, Clause 4. It appears that the applicants bereie the trial Court brought a suit for possession with respect to the very land which is in dispute in the present cas5 against the petitioners in this Court. In that suit, the petitioners clearly pleaded that the defendant Gani Sheikh had dispossessed them seven months before the filing of the suit and, therefore, they prayed for a decree for possession. As the plaintiffs did not, however, deposit the Court fees, the suit was dismissed on 3-3-1962. About two months later that is to say on 12-5-1962 the applicants before the trial Court, made an application befora the Munsiff Magistrate 1st class Kulgam for taking' proceedings Under Section 145 Cr. P. C. in respect of ihis very land, The learned Magistrate dropped the proceedings on 20-6-1952 holding that no case for drawing to proceedings Under Section 145 Cr. P. C. was made out. Six days afterwards, It. appears that the petitioners moved the District Magistrate Anantnag for drawing up proceedings Under Section 145 Cr. P. C. with the result indicated above. We might mention here that In the application filed by the; applicants before the learned District Magistrate Anantnag, the applicants had deliberately concealed the fact that a previously instituted suit by them for possession had been dismissed by the civil Court and that a similar application made, only a few days before to the Munsiff Magistrate 1st class Kulgam was also dismissed, on merits, me police report also clearly went to snow, that the applicant before the District Magistrate had been dispossessed long long before the institution of the present proceedings and that the petitioners before the Sessions Judge, were the persons who were in actual possession of the land in question. The police, however, recommended initiation of proceedings and attachment became it thought that the applicant before the trial Court being rightful co-sharers were deprived of their share in the property. This is, indeed, an extra ordinary recommenda. tion to have been made to the Magistrate. In fact, on the police report, it was absolutely clear that the petitioners before the District Magistrate were not in possession at all and, therefore, there could be no question of any dispute with respect to possession. Section 145 of the Code of Criminal Procedure, deals mainly with the question of possession and possession alone. As the applicants before the District Magistrate were not in possession of the properties on their own showing, the Magistrate had no jurisdiction to initiate' proceedings under Section 145' Cr.P.C. learned Counsel for the applicants before the trial Court and non-applicants in this Court, suomineo, however, that as a dispute with respect to possession arose, between the parties, the Magistrate had ample jurisdiction to proceed Under Section 145 Cr. P. C. and to attach the properties Under Section 145 Sub-clause 4 Cr. P. C. learned Counsel further contended that it is not necessary for the application of 145 Cr. P. C. that a dispute mentioned therein should be a bona fide dispute. In support of his argument, he has relied on a full bench decision of the Calcutta High Court reported in Agni Kumar Das v. Mantajuddin AIR 1928 Cal 610.
4. The Criminal Procedure Code has armed the Magistrate with powers to deal with disputes causing breach of peace in different circumstances. These provisions are Sees. 107, 144, 145, 147 and 133 of the Code of Criminal Procedure. The scope and ambit of each of these Sections appears to us to be separate because each of these Sections require a different set of circumstances to exist. So far as the disputes relating to land water are concerned, they are covered by Section 145 Cr. P. C. As we are concerned mainly with the scope and application of Section 145 Cr. P. C. we would deal with this Section at some length in view of the arguments advanced before us by the learned Counsel for the parties. We might also mention that in the State the amended Criminal Procedure Code has not yet been enforced and we have, therefore, to interpret Section 145 Cr. P. C. as it stands on the Statute Book of the State. The Relevant portion of Section 145 Clause (1) Cr. P. C. may be quoted thus:
Whenever a District Magistrate, sup-Divisional Magistrate or Magistrate of the first class 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 his being satisfied....
5. The word 'dispute' clearly implies an actual and genuine disagreement or difference between two or more contesting parties. In order to come within the ambit of this Section, the said disagreement should be with respect to the possession of and or water. The decision relied upon by the learned Counsel for the non-applicants namely AIR 1928 Cal 610 is that the word 'dispute' does not necessarily include a bona fide dispute. In this connection Rankin C. J. observed as fellows:
I dissent altogether from the doctrine that the words ; 'dispute likely to cause a breach of the peace' fifes only to bona fide disputes or only to reasonable disputes.
6. Although we are not prepared to go to the extent to which Rankin C. J. went in that case, we respectfully agree to this extent that the dispute Contemplated by Section 145 Cr. P. C. may not necessarily be a bona fide dispute. If that be so, it would be limiting the scope of Section 145 Cr. P. C. and placing restrictions on the provisions of the Section which the Legislature never intended. Indeed, if it is held that a dispute in order to come within the ambit of Section 145 Cr. P. C. should be a bona fide dispute, it may civil exclude the possession of a trespasser in actual possession of the land which is never the intention of the Legislature. In our opinion, even the possession of a trespasser in actual physical possession is entitled to be maintained if he is able to prove such a possession. At another place Rankin C. I. observed as follows:
Nor, on the other hand, is it clear to me that disputants with mala fide or unreasonable claims are specially amenable to orders for security under Section 107. The Magistrate's discretion in such matters must be determined by the facts as a whole. In particular everything depends upon the question which party is now in actual possession? To say that where the claim of one party is mala fide or is unreasonable the magistrate cannot, act Under Section 145 and should act Under Section 107 is both bad advice and bad law. If the party who seems to have no case on title is out of possession, there can be no reason why the other party's possession should not be declared.
7. With great respects to the eminent C. J. we are, however, unable to agree with some of his observations made above. In our opinion, there can be no doubt that the dispute contemplated by Section 145 Cr. P. C. though it may or may not fee bona fide, yet it must be a real or reasonable dispute and the claim or right to possession put forward by the party concerned must be a real one and not a mere cloak or a pretext to dispossess a party in actual physical possession through the summary procedure prescribed by the provisions of this Section., In fact the following words appearing in; Sub-section 4 of Section 145 Cr. P. C.
The Magistrate shall then without reference to the merits of the claims of any of such parties to a right to possess the subject or dispute....
clearly show that there must be a claim of party and a right to possess the land. The words 'claim or right to possess' clearly indicates that all saints of mala fide and unreal disputes are not covered by Section 145 Cr. P. C. Moreover the second proviso to Section 145 (4) Cr. P. C. provides that where a party has been dispossessed within two months next before the date of the order under i Section 145 Cr. P. C. its possession is to be treated as possession on the date of the order. This dlso shows the nature of the right and possession contemplated by Section 145. It is true that a court Under Section 145 Cr. P. C. is not entitled; to go into the merits of the claim or right to possess but a claim or right to possess there must be in any case. If all sorts of male fide and unreasonable disputes are allowed to be made the subject matters of the proceedings Under Section 145 Cr. P. C. it will lead to serious miscarriage of justice and such an interpretation on Section 145 Cr. P. C. would not, in our opinion, be in consonance with the language of Sub-section 4 and the proviso referred to above of Section 145 Cr. P. C. 1 am fortified in my view by a decision of the Patna High Court reported in Bhuneshwar Prasad v. Rommy Roy AIR 1940 Pat 492, where Dhavle J. observed as follows:
It is only where there is a dispute likely to cause a breach of the peace concerning any lantl or water or boundaries thereof and the dispute requires to be decided on evidence that resort to Section 145 becomes necessary; and it must be remembered that for this purpose the dispute has to be a real dispute and not a mere pretence on behalf of one of the contesting parties.
Similarly the Allahabad High Court took the same view in Emperor y. Ram Baran Singh, ILR 28 All 406 wherein Richards J. made the following observations:
I am clearly of the opinion that in every case in which a Magistrate finds that there is a bona fide dispute about land and that an order Under Section 145 will suffice to keep the peace, he ought to adopt the procedure laid down in Section 145. I think that the Magistrate is entitled for the purpose of considering whether or not there is a bona fide dispute about immoveable property to hear evidence. The moment he comes to the conclusion that a real dispute exists, no matter how erroneous the contention of one or other of the parties may be, he ought to refrain from deciding any question of title between the patties. His decision should merely be whether or not the claim set up is bogus or bona fide....
Even in AIR 1928 Cal 610 Ghose J. who delivered a separate judgment made the following observations:
The magistrate also may not take any action Under Section 145 if the person who has been put into possession is sought to be proceeded against by the defeated party who seeks to raise a dispute for disturbing the possession of the former and in that case take action Under Section 107. Nor should the Magistrate take action if it appears that the provisions of Section 145 are sought to be abused....
8. It is, therefore, clear that even Ghose J. who agreed with Rankin C. J. did contemplate that where there was no real dispute about possession, but the defeated party wanted to raise dispute for disturbing possession of another party, Section 145 was not the proper remedy. In order to appreciate this point of view it may be necessary to give certain concrete instances. The dispute with respect to possession may assume various forms. There may be cases for instance, where the right of the parties has been finally determined by a competent civil court and one party has obtained possession of lands in question under a decree of the civil court. If the decree is a recent one, it is the duty of the criminal court to maintain possession given by the civil Court. In such a case a the rights of the parties both on title and possession have been finally determined by the civil court, it cannot be said that there is a real dispute within the meaning of Section 145 Cr. P. C. I would illustrate this point by a concrete example. Suppose there is proceeding Under Section 14J Cr. P. C. between, A and B. A's possession is declared as against B. B files a civil suit and gets a decree for possession against A and is put in possession of the land by executing the decree. Soon after A again creates a dispute and starts contesting the claim of B. It is manifest that if a proceeding Under Section 145 Cr. P. C. is resorted to again, it will lead to serious travesty of justice because the dispute which existed between the parties has been settled. Indeed, if this process is allowed to continue, there will be no end to proceedings Under Section 145 Cr. P. C. and the litigation in the civil courts. Moreover, Sub-clause (6) of Section 145 Cr. P. C. provides as follows:.He shall issue an order declaring such party to be entitled to possession thereof until evicted therefrom in due course of law and forbidding all disturbances of such possession until such eviction ....
It is manifest from this provision that the intention of the Statute is to refer the defeated party to a civil court and once the civil court decides the question, the matter becomes final. The words 'until evicted therefrom in due course of law clearly shows that after the party in whose favour an order Under Section' 145 Cr. P. C. has been passed is evicted by a decree passed by the civil court, the possession of the party whose possession has been declared, disappears, and a second proceeding Under Section 145 Cr. P. C. if a decree is passed by a civil court is not maintainable. I am fortified in my view by the decisions of the Allahabad High Court reported in Brahma Nath v. Sundar Nath AIR 1919 Ali 311 (2) and Masih Uddin v. The State : AIR1953All383 as also decision of the Oudh Chief court reported in Imfiaz Alikhan v. Badruddin AIR 1943 Oudh 410. It seems to us that in such a case the party who has lost in the civil court has no right or claim to possession at all but the claim put forward by such a party is merely a pretext. Thus a defeated party being clearly in the wrong is attempting to usurp the rights of a party whose possession has been decreed by a civil court. In such a case the proper procedure for the magistrate is to bind over the party who is in the wrong Under Section 107 Cr. P. C. instead of instituting a second proceeding Under Section 145 Cr. P. C. In this view I am also supported by a full bench decision of the Patna High Court reported in Sheo-balak Singh v. Kamaruddin Mandal AIR 1922 Pat 435 (FB) in which it has been held:
In those cases it has been laid down that when one party is clearly in the wrong and threatens to usurp the rights of another, who is in actual possession of the land in dispute, the proper remedy is an order Under Section 144 or Section 107 of the Code of Criminal Procedure. In such a case Section 145 has no application inasmuch as there is no dispute as to the possession of the land.
In an earlier case of the Calcutta High Court reported in Doulat Koer v. Rameshwari Koeri ILK. 26 Cal 625, a division bench of the Calcutta High Court made the following observations:
The duty of the Magistrate was to carry out the orders of the Civil court and to maintain those orders by assisting the possession of any person whose title is found by that court. Under such circumstances, we are of opinion that proceedings Under Section 145 were without jurisdiction and that the magistrate, on a breach of the peace being certified to him, ought to have contented himself with declaring that the orders of the civil court should be maintained.
We respectfully agree with the observations made above. This rule, however, will be subject to a few exceptions.
A) Where the decree for possession has been passed at a time very remote from the date when proceedings Under Section 145 Cr. P. C. are initiated and the applicant alleges that he has dispossessed the successful party since the decree; the Magistrate would be fully competent to investigatei this question in a proceeding Under Section 145 Cr. P. C.
B) Where the delivery of possession obtained by the successful party by the civil court is alleged or shown to be a mere symbolical one, and it is further alleged that no actual possession was delivered at the spot, the criminal court will be justified in determining the question of possession in proceedings Under Section 145 Cr. P. C.
C) Where a decree obtained by offer party is a mere declaratory decree not followed by delivery of possession, it will be open to the applicant to allege that his possession was not disturbed by virtue of the decree. As the criminal court is concerned mainly with the question of possession a dedatory decree by itself would not be sufficient to displace the claim of the other party in a proceeding Under Section 145 Cr. P. C. In view of the decree all that can be said is that the applicant was a trespasser, but even the possession of a trespasser, can be protected Under Section 145' Cr. P. C. I am fortified in my view by a decision of the Patna High Court reported in Raghu-nath Singh v. Emperor AIR 1936 Pat 537 where their Lordships observed as follows:In the present case if .the decree had been for delivery of possession followed by execution, the proof of formal delivery of possession might well have been treated as conclusive proof in favour of the successful complainant; but where there has been no execution, and all that exists is a simple declaratory decree, I doubt whether the opinion of the Munsiff on this matter of possession should have any weight at all with a criminal court which has to decide the question on the evidence before it.
9. These exceptions are by no means Exhaustive but they have been mentioned by us only to show the scope and ambit of proceedings Under Section 145 Cr. P. C. in a large majority of cases.
10. Then there may be cases where a party being dispossessed by another filed a suit for possession and failed to obtain a decree. The dismissal of the suit in such a case would be conclusive proof of the fact that the said party was. not in possession of the prorjerty on his own showing and to such a case Section 145 Cr. P. C. wilt have no application unless there is a clear averment by the applicant that since the decree the applicant had re-acquired possession from the other party and having done so, was in possession or was dispossessed forcibly and wrongfully within two months of the date when the proceedings were instituted. The case before us appears to be covered by this instance.
11. Finally, there may be cases where the applicant has applied for proceedings Under Section 145 Cr. P. C. and the said proceedings have been decided against him. Instead of going to the civil court as required by Sub-section (5) of Section 145 Cr. P. C. the applicant moves the criminal court again for drawing up fresh proceedings Under Section 145 Cr. P. C. It is obvious that in such a case a second proceeding Under Section 145 Cr. P. C. would not be maintainable at all in view of the plain language of Sub-section (6) of Section 145 of the Code of Criminal Procedure which prohibits eviction of a person whose possession has been declared except in due course of law. The second proceeding may, however, be maintainable if the applicant alleges that since the order in the previous proceedings was passed, there has been change i in the circumstances by which the applicant had been able to dispossess the other party and got into possession of the land. There may be yet another category of cases where the applicant puts forward not a claim to possession but only a pretext of a claim so as to usurp the rights of a pflrty in actual possession. In such a case, as we have already indicated, it is obvious that Section 1145 Cr. P. C. will have no application and the Magistrate will have to deal with the party Under Section 107 Cr. P. C. Lastly there may be cases where there may not be a right to possession at all but a right to mere occupation as a licensee or otherwise. For instance, where a person goes out of the place leaving his property in charge of his servant. The servant cannot be heard to say that he was in possession as against his master. In such a case, the possession of the owner could be the possession of the servant and the right put forward by the servant would be merely a pretext and the servant would not be deemed to be in possession but only in occupation. The word 'occupation' should not be confused with the word 'possession' and to such a case, therefore, Section 145 Cr. P. C. will have no application, i In S. M. Yaqub v. T. N. Basu AIR 1949 Pat 146, Sinha J. made the following observations:
Possession should not be confused with occupation. A person may be in actual possession of his property without occupying it for a considerable time. I have a house in my native village, far away from Patna, which I do not occupy for months together; But still it is in my possession. I may have if house with large grounds of acres, only a small friction of which is either occupied by buildings or by flower beds or by kitchen gardens; but I am in possession of the whole because I have the right to utilize the whole in any way I like. If any body were to question my possession in respect of the unoccupied portion of the grounds in a proceeding Under Section 145 of the Code I am entitled to be declared in possession unless my adversary succeeds in proving that he had ousted me from possession of that portion by actually occupying it. But failing such a proof by my adversary, 1 must be deemed to be in actual possession, though I have not occupied it for a considerable length of time.
It is also now well settled that a Magistrate in proceedings Under Section 145 Cr. P. C. is concerned only with the question of possession and is not competent to decide complicated questions of title. It may, however, be open to the Magistrate to look to the title of the pasties incidentally for the limited purposes of determining the basis of possession claimed by the parties. But if the Magistrate finds that one party is in actual physical possession even without any title, the possession of such a party has to be declared. Possession contemplated by Section 145 Cr. P. C. may be 'constructive' or 'actual'. Where however, there is a dispute between a landlord and a tenant utter se, it is obvious that the magistrate cannot proceed mainly on the constructive possession of the landlord unless he finds that the tenant was notjin actual physical possession of the premises at all. As between the landlord and third parties however, the possession of the tenant must be considered to be the possession of the landlord.
12. On a careful analysis of the authorities and the language of Section 145 Cr. P. C. the I following propositions emerge:
a) Where one party is clearly in the wrong and puts forward merely a pretext of a claim in order to usurp the rights of the other party who is in actual physical possession of the property, the courts should not initiate proceedings Under Section 145 Cr. P. C. but should proceed against the wrongful party Under Section 107 Cr. P. C.
b), Where a party has been put in possession under a civil court decree and the defeated party is creating dispute resulting in breach of the peace and such a party does not allege or prove that it has dispossessed the other party after the decree for possession was passed, the Magistrate should bind over the defeated party under Section 107 Cr. P. C. instead of drawing proceedings Under Section 145 Cr. P. C. which may lead to serious injustice and duplicity of proceedings.
c) The criminal courts are bound to give due weight to a recent delivery of possession given by a civil court and up-bold the possession of a party which has been found in possession by the civil court.
d) The dispute contemplated by Section 145 Cr. P. C. is a real or reasonable dispute where one party puts forward a claim to possession and not merely a pretext. The Section, however, includes the possession of a trespasser if he is in actual physical possession of the property.
e) A Magistrate should not proceed to pass an order of attachment Under Section 145 Sub-clause 4 Cr. P. C. as a matter of routine but should do so only where a real emergency exists.
f) In considering the possession put forward by the parties, the magistrate has to give a finding only on the question of actual physical possession of the party concerned. The question of title may be incidentally gone into but should not be made the basis of an order under this Section. The Magistrate has to decide the question of possession and possession alone and in order to decide this Question he can certainly refer to the question of title but only incidentally.
g) Where there has already been a recent proceeding Under Section 145 Cr. P. C. the second proceedings Under Section 145 Cr. P. C. is not maintainable in absence of a clear averment by the applicant that the circumstances in the previous proceedings have changed by which the applicant has acquitted fresh possession over the premises in question.
13. Applying these tests to the present case, it seems to us that the applicants before the District Magistrate had no right to ask the court to draw up proceedings Under Section 145 Cr. P. C. In the first place, on their own showing in their plaint in the previous civil suit, they were out of possession for more than two years before the present proceedings were instituted. Secondly, they had filed a civil suit for possession which was dismissed. Thirdly, they had applied for proceedings Under Section 145 Cr. P. C. which was decided an ainst them. Finally, there was absolutely no allegation or averment in their application that they had re-acquired possession of the property in question after the decision of a civil court or after an order passed against them by the Munsiff Magistrate, Kulgam on 26-6-1962 which was only six days before the application was filed before the District Magistrate Anantnag. Even the police report revealed that the petitioners before the Sessions Judge were in actual physical possession of the property. In these circumstances, the materials before the District Magistrate far from showing that there was a dispute about possbssion, went to show that the applicants before him had no actual physical possessions at all within two months before the initiation of the proceedings. Resort to proceedings Under Section 145 of the Code of Criminal Procedure at the instance of a party out of possession on its own showing in such a case would amount to serious abuse of the powers of the court resulting in injustice to the party in possession, The word 'satisfied' appearing in Section 145 Cr. P. C. clearly indicates that the dispute contemplated by Section 145 Cr. P. C. must really exist. The. District Magistrate doifes not appear to have applied his minld to this aspect of the matter. The applicants before the ; District Magistrate also appear to have committed a fraud upon him by deliberately concealing the facts that there was a civil court decree as also a recent order Under Section 145 Cr. P. C. against them and that they themselves had pleaded in the civil court that they were) out of possession. Even if the District Magistrate would have perused the police report carefully, he would have been convinced that the applicants before him were not in possession at all.
14. We have often found in cases coming up before us that the Magistrate have issued orders for attachment Under Section 145 (4) Cr. P. C. as a matter of routine. The remedy of attachment is a very harsh remedy and should the resorted to only in exceptional circumstances where a real emergency exists. An order of attachment Under Section 145 Sub-clause 4 of the Code of Criminal Procedure is not meant to be an automatic formality to be resorted to as a matter of routine. There have been cases between landlords and tenants where by virtue of an order, of attachment, the tenants have been thrown out of the premises in their possession and thus the landlords succeed in getting selectmen of the premises without taking recourse to the remedy provided by law. In such, a case the Magistrate should be careful not to order attachment in this manner.
15. We are, therefore, clearly of the opinion, that the entire proceedings initiated by the District Magistrate Anantnag are utterly mis-conceived and without jurisdiction. Although the reference is only for quashing the order of attachment, since we have examined the entire case in our revisional jurisdiction, and have come to the opinion that the continuation of the proceedings will lead to serious injustice and abuse of the process of the court, we would quash the game.
16. For these reasons, therefore, we would accept the reference and quash the entire proceedings Under Section 145 Cr. P. C. drawn by the District Magistrate Anaatnag.
Janki Nath Bhat, J.
17. I agree.