Decided on April 20,1900



Prinsep, J - (1.) The matter before us relates to an order passed under Section 145 of the Code of Criminal Procedure holding that Mr. Middleton was in actual possession of the colliery in dispute and should be so retained in possession until the matter in dispute had been settled by a competent Court.
(2.) The objection taken on which the rule was granted was that the Magistrate did not find actual possession on the 29 of December, the date on which he passed an order under Section 145(1) for taking proceedings under that section, but that he found possession immediately before the 10 of November, the date of the order that he had passed between the parties under Section 144 of the Criminal P. C..
(3.) No doubt under Section 145 it is incumbent on a Magistrate ordinarily to find actual possession at the date of his passing an order under sub-sec. 1 and the proviso to sub-sec. 4 permits a Magistrate to consider previous possession, within two months t787] before such date under the circumstances stated therein. It has been contended before us, and we think no objection can be raised to this argument that the circumstances of this case do not come within the terms of that proviso. It cannot be disputed that the Legislature could not have had in contemplation a case such as the present. The Magistrate has found that, by reason of the order under Section 144 passed on the 10 November, the possession of neither of the disputing parties existed from that date up to the date of the proceedings taken under Section 145, and consequently he has proceeded to consider the possession before the date of that order under Section 144, in order to determine who was lawfully in possession at that time, for it may be justly considered that the exercise of any rights on such possession was merely suspended by the order under Section 144. Some recent cases have shown to this Court how disastrously an order under Section 144 may operate in regard to the exercise of private rights of parties and the present case may be added to the list of those cases. Here the order recites that there was a dispute between the parties likely to cause a breach of the peace in regard to the possession of this colliery, and it was, accordingly, ordered that "neither party should exercise any act of possession there or do anything likely to lead to a criminal breach of the peace." The result of that order has been practically an attachment of the property, and it was not until the 29 December that the successor of the Magistrate, who had passed the order under Section 144, realized the necessity for proceedings under Section 145.;

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