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1956 DIGILAW 35 (ALL)

Pearey Lal v. State

1956-01-16

D.N.ROY

body1956
JUDGMENT D.N. Roy, J. - This is an application in revision by Piarey Lal, Ram Saran and Sheo Charan praying that an order, dated the 30th of January, 1954 passed by the Sub-Divisional Magistrate in proceedings u/s 145 of the Code of Criminal Procedure be set aside and that the possession of the applicants be maintained. 2. In the courts below one Roshan Lal was also arrayed on the side of the present applicants, and he had been as much affected by the order aforesaid, dated the 30th of January, 1954 as the present applicants. Mr. Ghatak appearing on behalf of the applicants has contended that it was pure over-sight that Roshan Lal was left out from the array of party, but he has argued that the omission of Roshan Lal will not affect the setting aside of the order in question, because the Court in the exercise of its revisional jurisdiction can set aside that order even upon the motion of some of the parties affected by that order, if that order is held to be not in accordance with law. This contention seems to me to be well-founded. 3. The facts may be, briefly, stated. An application was made on the 23rd of June, 1952 by Khasa, opposite-party against Piarey Lal, Ram Saran, Sheo Charan and Roshan Lal u/s 145 Code of Criminal Procedure in respect to two plots of land bearing Nos. 1948 and 1949. Khasa contended that these plots of land had been in his possession some time prior to the 7th of June, 1952; that he had grown sugarcane over plot No. 1948 and Ghia crop over plot No. 1949; that when he had gone away on pilgrimage to a place known as Shukartair, Roshan Lal, Piarey Lal, Ram Saran and Sheo Charan unlawfully took possession of these plots together with the crops standing over the same and they cut away the sucarcane and sold it to the Mills and they also cut away the Ghia crop and over both these plots they grew Chari crop and forbade Khasa from coming anywhere near these plots and threatened him that if he did so, he would be put to death. It would be evident from the petition made u/s 145 of the Code that Khasa alleged dispossession on a date prior to the 7th of June, 1952. It would be evident from the petition made u/s 145 of the Code that Khasa alleged dispossession on a date prior to the 7th of June, 1952. And that allegation was supported by Khasa when he was examined in the lower court. On the 23rd of June, 1952 the S.D.M. called upon the police to inquire and report. The police report was made on the 28th of August, 1952 to the effect that there was an apprehension of breach of the peace. The report was submitted to the Magistrate on the 29th of August, 1952. The preliminary order u/s 145 was, however, made by the Magistrate on the 15th of September, 1952, and it was to the following effect: From the police report I am satisfied that there is apprehension of breach of the peace over disputed possession of land. Issue notice to the parties u/s 145 Code of Criminal Procedure to file their written statement on 8-10-1952. 4. After the written statements were filed by the parties in support of their respective claims and after evidence had been led by the parties, the learned Sub-Divisional Magistrate by a finding, dated the 30th of January, 1954 came to conclusion that the complainant was in possession of the plots in dispute within two months of the preliminary order and he declared him to be in possession and ordered that possession of the plots in dispute be delivered to Khasa and that no one should interfere with his possession unless he was duly evicted by a Court of Law. The proceedings did not even disclose that at any stage the property had been attached by the Sub-Divisional Magistrate. I have not been able to follow how the Sub-Divisional Magistrate held on the 30th of January, 1954 that the complainant, namely Khasa was in possession of the plots in dispute within two months of the preliminary order passed by him, when according to the allegation made by Khasa in his application u/s 145 and also in his evidence, Khasa contended that his dispossession took place prior to the 7th of June, 1952. The preliminary order u/s 145 was made, as I have already said, on the 15th of September, 1952, that is, more that two months after the alleged dispossession. The preliminary order u/s 145 was made, as I have already said, on the 15th of September, 1952, that is, more that two months after the alleged dispossession. The finding of the learned Sub-Divisional Magistrate that the complainant was in possession of the plots in dispute within two months of the preliminary order was, therefore, palpably erroneous and the error is apparent on the fact of the record. 5. It has been contended on behalf of Khasa that when the application u/s 145 of the Code was made by him within a few days of his dispossesion, he cannot be made to suffer by any in action on the part of the Court where the Court passed the preliminary order more than two months after the date of dispossession and it has been argued that the provisions of Section 145, Sub-clause (4) of the Code, must be construed to mean that the order will relate back to the date when the application u/s 145 was made. The point is covered a number of decisions of this Court and of other Courts; and the state of authorities appears to be as follows: In (Chinchilada) Kirishnam Raju Vs. Chintala Swami Naidu and Others, AIR 1927 Mad 816 , and in R. Srinivasa Reddy Vs. M. Dasaratharama Reddy, AIR 1929 Mad 198 the Madras High Court took the view that even though the preliminary order may have been passed more than two months after the date of dispossession, an order u/s 145 could be passed and no party should suffer from the delay on the part of the Court. This view has been followed by the same Court in Chunchu Narayana and Others Vs. Karrapati Kesappa, AIR 1951 Mad 500 and by the Orissa High Court in Smt. Subarna Sunami and Others Vs. Kartika Kudei and Others, AIR 1954 Ori 183 . In Arunachala Goundan v. Chinnadurai AIR 1945 Mad. 216 however a different view was taken and it was held that when the words of a statute are clear, they should be literally applied; that the words of the proviso to Sub-Section 4 of Section 145 are clear and, therefore, if the interval between the dispossession and the date of the preliminary order is longer than two months, no order can be passed u/s 145 and the only course open to the Magistrate is to maintain the possession of the non applicant. This view has been followed by almost all the Indian High Courts, for instance, Lakshmi Narain Singh v. Jugeshwar Jha AIR 1954 P&H. 169, Tolan Kalita v. Bhubban Chandra AIR 1951 Ass. 161, AIR 1931 38 (Nagpur) , Meharban Singh Vs. Bhola Singh and Others, AIR 1935 All 35 , Janama Bhoi and Another Vs. Draupadi Bhoiani, AIR 1952 Ori 26 , Mohommed Beg v. Eshan Beg AIR 1941 Oud. 515, Mohd. Ali v. Shamshul Haq AIR 1940 Sin. 33, and Bhairon Singh v. Nain Singh 1952 R.L.W. 441. The same view was also adopted by the Hyderabad High Court in Fatima Sultana Begum v. Rang Rao AIR 1954 Hyd. 215. The Hyderabad High Court, however, took diffrent view in Phadramma v. Kotam Raj AIR 1955 Hyd 140. There is another unreported decision of this Court in Criminal Revision No. 45 of 1945, King Emporor v. Harak Singh decided by Braund, J, where it was held that the first proviso to Sub-Section 4 of Section 145 is quite explicit and Sub-section 4 itself makes the date at which physical possession is obtained the determining factor; but as a qualification upon that it allows a concessive . where it is proved that a person has been physically dispossessed within two months of the date of such order. It was further observed that, when the legislature fixed two months, it, no doubt, meant two months; and when it spoke of the date of the order u/s 145(1) as being the date from which two months should be calculated, it, no doubt meant exactly what it said and it cannot, therefore, be possibly contended that the period must be reckoned not from the date of the preliminary order but from the date of the application itself. 6. A brief resume of the 'ratio decidendi' of these various judgments may be given here. The line which the two cases of our own Court and the other cases cited above inclusive of In Arunachala Goundan v. Chinnadurai AIR 1945 Mad. 6. A brief resume of the 'ratio decidendi' of these various judgments may be given here. The line which the two cases of our own Court and the other cases cited above inclusive of In Arunachala Goundan v. Chinnadurai AIR 1945 Mad. 216, took is this: Undoubtedly it is 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 on account of the multiplicity of business in the Courts but we cannot concede that any interpretation at variance with the plain words of the section is justified. 7. On the other hand, the reasoning adopt-ed in the cases where a contrary view was taken, appears to be as follows: A perusal of Section 145(4) of the Code of Criminal procedure and its proviso makes it clear that no time should elapse between the complaint and the issue of the preliminary order. The order should follow the petition that the Magistrate should be satisfied on the complaint or the report of the police and should not enter into any inquiry at that stage whether the complaint or the report of the police is correct or not. 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 dare, it should be deemed to have been passed immediately after the receipt of the police report or the other information. 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 dare, 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 curae neminem gravabit an act of the Court shall prejudice no man has to be applied, and it illustrates this maxim in a case where the: 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 be prejudiced by that delay but should be allowed to enter up his judgment restropectively to meet the justice of the case and the judgment may be entered nunc pro tunc (now for then) for the delay is the act of the Court for which neither party should suffer. 8. I have carefully considered all the above authorities. It is evident that the weight of authority is on the side of the view that the provisions of Section 145, Sub-clause (4) of the Code of Criminal Procedure must be strictly construed. I fully endorse the view that when the words of the statute are clear, there is no room left for interpretation; and the clear words of the statute should be given effect to. It would not be open to the Court to embark upon an inquiry than when a given state of affairs does not come within the obvious meaning of the words of the statute, that is, when certain contingencies are not provided for, or, when the words of a provision though crystal clear, do not embrace a particular question in hand, it would mean that it was not contemplated by the legislature that the point in hand is to be strictly construed within the four corners of the words contained in the statute itself. In the particular case now before us, the words of the proviso to Sub-Section 4 of Section 145, do not appear to come within the doctrine of casus omissus Sub-clause 4 of the Section 145 makes it abundantly clear that what the Magistrate is required to find is as to which of the parties was at the date of the preliminary order passed by him in possession of the subject of dispute. The proviso to that Sub-section specifies that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the part so dispossessed as if he had been in possession at such date. That proviso again refers to the date of the preliminary order. The same result would follow upon an interpretation of Sub-section (6) of Section 145. Sub-section (6) says that if a Magistrate decides that if one of the parties was, or should under the first proviso to Sub-section (4) be treated as being in such possession of the said subject, he shall issue an order declaring such party to be entitled to possession thereof until evicted there from in due course of law and forbidding all disturbance of such possession until such eviction; and when he proceeds under first proviso to Sub-section (4) may restore to possession the party forcibly and wrongfully dispossessed. The crucial date under all the contigencies contemplated u/s 145 is, therefore, the date of the passing of the preliminary order. It is, therefore, obvious that a person who has been dispossessed forcibly more than two months before the date of the preliminary order passed u/s 145 but within two months prior to his complaint, he cannot derive any benefit u/s 145. Where he claims to have been dispossessed and it appears from the face of the record that the dispossession took place more than two months before the date of the preliminary order, then the possession of the opposite party must be maintained. 9. For the reasons given, above, I allow the application in revision, set aside the order passed by the learned Sub-Divisional Magistrate and direct that the possession of Piarey Lal, Ram Saran, Sheo Sharan and Roshan Lal over the plots in question be maintained until evicted there from in due course of law.