Shah Md. Yunus v. Bajrang Mahto — 1961 DIGILAW 140 (PAT)

Judgment Raj Kishore Prasad, J. 1. This reference involves the interpretation of the Second Proviso to Sub-section (4) of Sec.145 of the Code of Criminal Procedure. which for the sake of brevity will be referred to hereinafter as "the Code" 2. The sole question for determination, therefore, in this case, is, whether the words "two months", occurring in the expression within two months next before, the date of such order", used in the Second Proviso to Sub-section (4) of Sec.145 of the Code, mean prior to the date when the order under Sub-section (1) of Sec.145 of the Code is made, or, prior to the order made under Sec.144 of the Code, which preceded and ultimately resulted in the conversion of the said proceeding into one under Sec.145 (1) of the Code. 3. Another question, which is allied to the above question and which would arise, if the first interpretation to it is found to be its correct answer, as to how possession within two months prior to the order under Sec.145 (1) is to be determined if it is preceded by an order under Sec.144 of the Code, which is a fore-runner of the subsequent proceeding under Sec.145(1), 4. The facts are those. On the 16th May, 1958, an information was lodged with the police, whereupon the Police Officer visited the spot on the 19th May, 1958, and submitted his report, on which a proceeding under Section. 144 of the Code was drawn up on the 14th June, 1953 prohibiting both the parties from going, upon plot 1943 the subject matter of dispute. Subsequently on the 18th of November, 1958, the said proceeding under Sec.144 was converted into one under Sec.145 and a proceeding under Sub-section (1) of Sec.145 was, accordingly, drawn up. The learned Magistrate, on the 13th December, 1900, passed an order under Sec.145 (6) declaring the first party Nos. 1: 2, 3, and 5, who are the opposite party here, to be in possession. In passing the said order, under Sec.145 (6) of the Code he said: ...... ....in my opinion the first party is in possession of the land at least since 19-5-1958, when the police visited the spot, if not from earlier. In 145 Cri. 1: 2, 3, and 5, who are the opposite party here, to be in possession. In passing the said order, under Sec.145 (6) of the Code he said: ...... ....in my opinion the first party is in possession of the land at least since 19-5-1958, when the police visited the spot, if not from earlier. In 145 Cri. P. C. proceeding I am to find out possession on the date of proceeding or within two months prior to that which finds well proved in favour of first party." 5. The second party, thereafter, moved the learned Sessions Judge against the above order and the case was heard and disposed, of by the learned Additional Sessions Judge, who has made the reference under consideration recommending that the order of the Magistrate dated the 13th December, 1960 should he quashed as that order has been passed on misapprehen-sion of the true legal position." 6. Mr. Akbar Imam, appearing in support of the reference contended, relying on a decision of Dhavle, J., in Gobardlian DAS V/s. Suresh Chandra, AIR 1942 Pat 489, which has also been relied upon by the learned Judge, that the period of "two months", envisaged by the Second proviso to Sub-section (4) of Sec.145, when there is an Order before under Sec.144 of the Code against both the parties, should be counted backwards from and prior to the order under Sec.144, as admittedly for the period of two months from the said order no party was in possession and if the proceeding under Sec.145 (1) was drawn up long after the expiry of two months, as here it would be great injustice to the parties. 7. Mr. N. C. Ghosh, appearing against the reference, however, combated the above contention, and, in reply, argued that on the plain language of the Second proviso to Sub-section (4) of Sec.145, the period of two months must be counted prior to the date when an order under Sub-section (1) of Sec.145 is passed, and, therefore, the Order of the learned Magistrate is correct, and, as such, the reference should be discharged. He contended that the decision in AIR 1942 Pat 489, relied upon by Mr. He contended that the decision in AIR 1942 Pat 489, relied upon by Mr. Imam, has been overruled by a Division Bench of this Court in Lakshmi Narain Singh V/s. Jugeshwar Jha, AIR 1954 Pat 169 , and, the latter decision has recently been followed by a learned Single Judge of this Court in Re. Harihar Singh V/s. Keshab Chandra Mukhfirji, 1961 BLJR 536, and, further, that the view taken by this Court is also support ed by decisions of other High Courts. Mr. Ghosh, therefore, relied on two Bench decisions, one of the Assam High Court in Tolan Kulita V/s. Bhuban Chandra, AIR 1951 Assam 161, and another of the Andhra High Court in padmaraju Subba Raju V/s. Padmaraju Konetu Raju, (S) AIR 1955 Vndhra 99 and also on two Single Judge decisions, one of the Orissa High Court in Janmia Bhoi V/s. Oraupadi Bhodani, AIR 1952 Orissa 26 and another of the Madras High Court in Arunachala Goundan V/s. Ohimwdurai, AIR 1945 Mad 216. 8. Mr. Imam, however, distinguished the above mentioned cases, relied upon by Mr. Ghose, on the ground that in none of the cases of the other High Courts there was an order under Sec.144 of the code preceding the order under Sec.145 (1) of the Code, and, that in, both the patna cases, there was an order under Sec.144, no doubt but the order under Sec.145 (1) was made within two months from the date of the expiry of the order under Sec.144, and therefore, it was contended that none of the above mentioned cases was of any guidance and assistance in resolving the issue involved in the instant case. 9. Let us now read Sub-section (4) of Sec.143 and its Second proviso, which, so far as material are in these terms : "145. XX XX XX (4) The Magistrate shall then, ............ 9. Let us now read Sub-section (4) of Sec.143 and its Second proviso, which, so far as material are in these terms : "145. XX XX XX (4) The Magistrate shall then, ............ if possible, decide the question whether any and which of the parties was at the date of the order before mentioned in such possession of the said subject: XX XX XX Provided further 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 party so dispossessed as if he had been in possession at such date : XX XX XX" On the plain language of the Second proviso to Sub-section (4) of Sec.145, read above, and, on its strict construction, it is manifest that the Statute specifically and in express terms provides that two months must be calculated from the date of the order passed under Sub section (i) of Sec.145 of the Code and from no other date. Under this proviso the question of possession is to be determined with reference to a fixed point of time, i.e., within two months next preceding the date of the initial order under Sub-section (1) of Sec.145, and therefore, the period of two months prescribed therein cannot be extended. 10. The starting point from which the period of two months, mentioned in the Second Proviso, will be counted, therefore, is not the date when an order under Sec.144 is passed but the date when the preliminary order under Sub-section (1) of Sec.145 is passed. To meet the situation of a party, who was in possession immediately before the passing of the preliminary order under Section 145 (i), being dispossessed forcibly and wrongfully before that date, this Second Proviso has been added to Sec.145 (4) empowering a Magistrate to treat such a person dispossessed as if he had been in possession on the date of the preliminary order. For the purpose of this Second Proviso, a specific period of two months next before the date of the order under Sec.145 (1) is fixed for invoking the fiction embodied in this proviso. There is no provision, either expressly or by necessary implication, empowering a Magistrate to invoke, the fiction embodied in this P proviso to cover a period extending beyond the said two months. There is no provision, either expressly or by necessary implication, empowering a Magistrate to invoke, the fiction embodied in this P proviso to cover a period extending beyond the said two months. There is neither any provision allowing for extension of the period of two months laid down in this Proviso, whatever the cause of delay may be. No order can he passed in favour of a party, who was dispossessed, even though forcibly and wrongfully, but more than two months before the date of the order under Sec.145 (1) of the Code. 11. A Magistrate is not justified in treating or empowered to treat the party who had been dispossessed more than two months before the actual date of his preliminary order under Sec.145 (I) as being in possession on the date of his order under the Second Proviso to Sec.145 (4). This is so eyen when the Court itself is responsible for the delay, because the principles of equity or the doctrines of actus curiae neminem gravabit (act of Court shall prejudice no man) and of nunc pro tune (now for them) cannot de applied to an order passed by a Magistrate under Sec.145 (4) of the Code. 12. It is a well established canon of construction of a statute that where the language of the section clearly expresses the intention of the legislature it must be given effect to regardless of the consequence and the Court cannot consider the fact that such effect causes hardship or inconvenience to any party in some cases. 13. The crucial question, however, is, whether, in a case, where a proceeding under Sec.144 of the Code is the fore-runner of tha subsequent proceeding under Sec.145 and the preliminary order under Sec.145 (1) is passed after the expiry of and beyond two months from the date of the order under Sec.144, the date of the order for the purpose of the Second Proviso to Sec.145 (4) should be taken to be the date on which the proceeding under Sec.144 was started or the proceeding under Sec.145 (1) was started? 14. There is a deep cleavage of judicial opinion regarding the construction of the Second Proviso to Sub-section (4) of Sec.145. Some Courts accent the plain meaning of the words used in this Proviso and others invoke equitable doctrines mentioned before in construing the words. 14. There is a deep cleavage of judicial opinion regarding the construction of the Second Proviso to Sub-section (4) of Sec.145. Some Courts accent the plain meaning of the words used in this Proviso and others invoke equitable doctrines mentioned before in construing the words. But it is well settled by now by a majority of the High Courts, including this Court, that a strict and literal construction should be given to the Second Proviso as stated before, and that even though there might be delay on the part of the Court in taking action, the period of two months should be counted only from the date on which the preliminary Order was actually passed under Sec.145 (1) of the Code and not from the date of the order passed earlier under Sec.144 of the Code. 15. As was pointed out, by their Lordships of the Privy Council in Nagendra Nath Dey V/s. Suresh Chandra, AIR 1932 P. C. 165 : "Tha fixation of periods 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 the strict grammatical meaning of the words is, their Lordships think, the only safe guide." 16. The above pregnant observation of the Judicial Committee was extracted and adopted by Subba Rao, C. J., as then he was, and with whom Satyanarayana Raju, J. agreed, in (S) AIR 1955 Andhra 99, and, agreeing with the views expressed in AIR 1951 Assam 161, AIR 1952 Orissa 26 and AIR 1945 Mad 216, relied Upon by Mr. Ghosh, the learned Chief Justice, further observed, at page 102, that: "The fact that in some cases a strict construction of the clear provisions of a statute may cause hardship to one party or other cannot be a ground for putting a construction on a section doing violence to the language used. After all, Sec.145, Criminal P. C., prescribes a summary procedure for deciding a limited question of actual possession to prevent breach of peace. The rights of the parties, are not affected and they will ultimately be decided by a civil Court. To effectuate the purpose, a reasonable time was fixed for dating back the Order and if any party falls unfortunately on the other side of the line, he has his remedies in a civil Court. The rights of the parties, are not affected and they will ultimately be decided by a civil Court. To effectuate the purpose, a reasonable time was fixed for dating back the Order and if any party falls unfortunately on the other side of the line, he has his remedies in a civil Court. We are, therefore, clearly of the opinion that the First proviso (which is now the Second Proviso) to Sub-section (4) 67 Sec.145, Criminal P. C. must be confined only to forcible and wrongful dispossession within two months next before the date of the preliminary order." 17. I express my cordial assent to the above quoted observation of the learned Chief Justice of the Andhra High Court. 18. The words "two months next before the date of such order" are clear enough to indicate that "two months" must be counted from the date when the order under Sec.145 (1) of the Code was made, even though, there was previously a proceeding under Sec.144 of the Code, which was a lore-runner of the subsequent proceeding under Sec.145 of the Code. It is true that Dhavle, J., in AIR 1942 Pat 489, relied upon by Mr. imam, held that two months should be counted backwards from the date of the order under Sec.144 of the Code, in that, if two months could not be counted backward from the date of the order under Sec.144, then, manifestly injustice might result to a party forcibly and wrongfully "dispossessed in this period but more than two months before the date when the proceeding under Sec.145 is actually drawn up. This decision, however, was subsequently overruled by a Division Bench of this Court, presided over by Imam and Ahmad, JJ. in AIR 1954 Pat. 109 , (supra), wherein it was held that two months envisaged by the second proviso to Sub-section (4) of Section 145 of the Code must be calculated from the date of the order passed under Sec.145 (i) of the Code and from no other date. Imam, J., as then he was, and with whom Ahmad, J., agreed, in this connection, at page 170, observed : "The words in the proviso are dear enough and there is no ambiguity about them. Imam, J., as then he was, and with whom Ahmad, J., agreed, in this connection, at page 170, observed : "The words in the proviso are dear enough and there is no ambiguity about them. Consequently, the Court has to give full effect to the words of the statute." XX XX XX "Reliance, however, was phced upon the observations of Dhavle, J., in the Patna ease, AIR 1942 Pat 489. While I think, from the point of view of hardship and perhaps even a sense of equity, sentiment should lead a Court to favour a party who has been forcibly and wrong-fully dispossessed, I think it would be beyond the functions of a Court to be misled by such sentiments and give a construction to the provisions of a statute which entirely alters it and gives to it a meaning which is contrary to the plain words of the statute." 19. Mr. Imam argued that the above mentioned Division Bench decision has no application here, because in the said case, an order under Sec.144 was passed on the 27th June, 1950 and the preliminary order instituting proceedings under Sec.145(1) was passed on the 2nd August, 1950, that is, within two months for which the order under Sec.144 was in force, but in the instant case, so ran the argument, the order under Sec.144 was made on the 14th June, 1958 & the preliminary order Under Sec.145 (1) was passed on the 18th December, 1958, that is, after the expiry of sixty days, and, as such it was argued, if the period of two months is counted prior to the date of the order under Sec.145 (l), then, in that case, it would fall within the period when the order under Sec.144 was in force and none were in possession and, therefore, it was contended, that such a literal construction of the Second proviso to Sec.145 (4) would make it meaningless and a reductio ad absurdum. 20. In reply, it was argued by Mr. 20. In reply, it was argued by Mr. Ghosh that the Second Proviso, under consideration, has to be read as it is and construed literally and if it is so done, it would be plain that the question of hardship or injustice is immaterial, and, therefore, the Bench decision of this Court, above mentioned, would apply even when the order under Sec.145 (1) is passed after two months from the date of the order under Sec.144 of the Code. 21. Mr. Imam, however, met the above contention by laying over-emphasis on the observation of James, J., in Saddique V/s. Sheikh Mohid, AIR 1930 pat 556, to the effect that "no evidence could be offered to shew the possession of either party for the period during which the order under Sec.144 was in force". In the present case, however, on the admitted facts the order under Sec.144 spent its force, after the expiry of two months, on the 14th August, 1958, and, thereafter, from the 15th August, 1958 to the 18th November, 1958, when the order under Sec.145 (1) was passed, there was no injunction under Section 144 in force, and, therefore, evidence of possession could be given for that period. The observation of James, J., relied upon, therefore, has no application to the facts here. 22. The question, tenaciously put forward by Mr. Imam, as to how possession is to be determined when an injunction under Sec.144 of the Code has been issued against both the parties, can, on the facts here, be answered as below. 23. In the instant case, the injunction order under Sec.144 was issued on the 14th June, 1958. The preliminary order under Sec.145(1) was made on the 18th November, 1958, that is, after a little more than five months from the order under Sec.144 and after a little more than three months after the expiry of the period of two months as postulated by Sub-section (6) of Section 144 of the Code. The preliminary order under Sec.145(1) was made on the 18th November, 1958, that is, after a little more than five months from the order under Sec.144 and after a little more than three months after the expiry of the period of two months as postulated by Sub-section (6) of Section 144 of the Code. The period of two months, envisaged by the Second Proviso to Sec.145 (4), prior to the 18th November, 1958, when the order under Section 145 (1) was made, would be the 17th September, 1958, and, therefore, the period between the 15th August, 1958 to the nth November, 1958, within which 17th September, 1958, fell, would obviously be when the injunction under Sec.144 was not in force, The Magistrate has found the First Party in possession from the 19th May, 1958 tall the date of his preliminary order under Sec.145(1) and, therefore, the possession of the First party from at least the 15th August, 1958 to 17th November, 1958, which would be within two months prior to the datate of the order under Sec.145 (1), was not affected by the order under Sec.144, and, as such, it was open to a Magistrate to find the possession of a party after an order under Sec.144 had spent its fores and before a proceeding under Sec.145 (l) is drawn up. In this view, it cannot be said that the Magistrate, here, has committed any illegality. 24. As the order of the learned Magistrate has not been attacked by Mr. Imam on the ground that the Second Proviso to Sec.145 (4) did not apply to the facts of the present case, it is not necessary to express any Opinion on this aspect of the matter and to decide whether, here, it was a case of forcible and wrongful dispossession of the first party within the meaning of the Second Proviso to Sec.145 (4). The reference has to be answered on the assumption that the Second Proviso to Sec.145 (4) applied to the facts here and the only dispute was about the mode of determination of possession within two months, mentioned therein, prior to the order under Sec.145 (1). 25. In this view, on the facts here, It is also not necessary to decide the wider question as to how the question of possession within two months prior to the order under Sec.145 (1). 25. In this view, on the facts here, It is also not necessary to decide the wider question as to how the question of possession within two months prior to the order under Sec.145 (1). is to be decided when during the entire period of such two months an order under Sec.144 is in force, and, an order under Sec.145 (1) is made within and before the expiry of two months envisaged by Sec.144 (6) of the Code. 26. Here, the Magistrate found the first party to be in possession since at least the 19th May, 1958, because on that date the police went to the spot and found the admitted but of the first party on the disputed plot and further found the first party living in it. The Magistrate therefore, found in fact the dispute plot to be in actual possession of the first partey on the 19th May, 1958 since then, notwithstanding that the order Under Sec.144 of the Code was till then in force. The penalty for infringing au order under Sec.144 is that provider in Sec.188, Penal Code, but we are not concerned here with this. We are, here, concerned only with the finding of the Magistrate that the first party were in possession at least since the 59th May, 1958, when the police visited the spot. 27. On the above construction of the Second Proviso to Sub-section (4) of Sec.145, which, in my opinion, is its true meaning and interpretation, it is plain that the learned Magistrate was right in observing that the possession, at least since the 19th May, 1958, of the first party was within two months from the date of the "order under Sec.145 (1) passed on the 18th November, 1958, and, therefore, he was justified in declaring the first party to be in possession when he found them to be in possession since then. 28. For these considerations, I hold that the ground on which the reference has been made by the learned Judge is wrong in law, and, accordingly, it is discharged.