P.N.Bakshi - (1.) ABDUL Rasheed filled an application on 8th August, 1977 against Mohd. Sabir and Smt. Ghafooran for starting proceedings under section 145 CrPC. In this application he alleged that he was in possession of a house situate in village Jam Sawant, police station Baheri, District Bareilly but the opp. party had forcefully and wrongly dispossessed him on 14th July, 1977. He further alleged that there was an apprehension of! breach of peace with regard to the possession of the house and hence prayed for initiation of proceedings under section 145 CrPC. The Magistrate ordered the police to submit a report but no such report was received. Again on 27th September, 1977 ABDUL Rasheed prayed that a reminder be issued to the police for' sending its report. But yet no report was received inspite of the reminder. Then on 11th October, 1977 ABDUL Rasheed filed another application before the Magistrate for calling a report from the Tehsildar. The court ordered likewise, and thereafter the Tehsildar submitted his report on 24-1-1978. The Magistrate then passed the preliminary order under section 145 (1) CrPC on 13th March, 1978. This order indicated that the Magistrate was satisfied from the Tehsildar report dated 24-1-1978 that there was an apprehension of breach of peace between the parties on the question of possession of the house in dispute. He called upon the parties to file their written statements and proceeded with the inquiry.
(2.) AN objection was raised before: him that the proceedings under section 145 CrPC were not maintainable because the preliminary order was passed on 24-1-1978 whereas the applicant Abdul Rasheed had been dispossessed as far back as 14th July, 1977. Therefore, the Magistrate had no jurisdiction to restore possession of the property in dispute to Abdul Rasheed, who had been dispossessed thereform about 8 months prior to the passing of the preliminary order. This contention prevailed with the Sub-Divisional Magistrate Baheri, who passed an order on 11-2-1980 dropping the proceedings under section 145 (1) CrPC. Aggrieved thereby a revision was filed before the Addl. Sessions Judge, Bareilly, which has been allowed. The impugned order of the Magistrate was set aside and he has been directed to proceed with the case in accordance with law and in the light of observations made by the Sessions Judge. In these circumstances, the instant revision has been filed. I have heared learned counsel for the parties and have also perused the impugned orders. Counsel for the applicant has argued that since the report of the Tehsildar was received by the Court ion 24-1-1978, on the basis of which the preliminary order dated 1-3-1978 had been passed and since on the own showing of Abdul Rasheed he had been dispossessed eight months earlier on 14th July, 1977, therefore, the Magistrate has no jurisdiction to continue with the proceeding under Sec. 145 having regard to the proviso to Sec. 145 (4) CrPC. In this connection, learned counsel has placed before me Sec. 145 (1) CrPC and has argued that there are two methods of invoking the jurisdiction of the Sub- Divisional Magistrate under Sec. 145 (1) CrPC. One by receiving a "report from the police officer" and the other upon of.her information that a dispute likely to cause an apprehension of breach of peace concerning land etc. exists. When the Magistrate receives such an information, he has to be satisfied that such a dispute does exist. Thereafter he passes the preliminary order. In the instant case, the Magistrate was not satisfied on the basis of the .application of Abdul Rasheed dated 14-7-1977 (other information) and, therefore, he called for a report from the police. The report of the Tehsildar was submitted on 24-1-1978 and the preliminary order passed on 13-3-1978. Referring to Sec. 145 (4), proviso, applicants counsel submits that it authorised a Magistrate to put a party back to possession, while passing his final order under section 145 (4) CrPC provided the party had been forcibly and wrongly dispossessed within two months, next before the date on which the report of police officer or other information was received by him. The argument is that the period of two months is to be accounted from the date when the Magistrate is satisfied with regard to the existence of breach of peace, either on police report or other information.
(3.) I have carefully scrutinised this argument, but to my mind it does not hold water. The jurisdiction of a Magistrate to proceed under section 145 (1), no doubt depends upon his satisfaction with regard to satisfaction of the apprehension of breach of peace. That is a foundation of his jurisdiction. He is, therefore, authorised to proceed with the inquiry and to pass a final order in accordance with section 145 (4) Cr. P. C. declaring one party or the other to be in possession of the subject matter in dispute on the date of the preliminary order. But this does not mean that the period of limitation of 2 months which has been fixed for undoing a wrong committed by one parry in forcefully and wrongfully dispossessing the other party, is dependent upon his satisfaction which is required for passing a preliminary order. The relevant portion of Section 145 (4) of the old Code of Criminal Procedure prior to its amendment ran as follows :- Inquiry as to possession- , "Magistrate shall then, without refarence to the merits of the claims of any of such parties to a right to possess the subject of dispute.........-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.......... Provided further that if it appear to the Magistrate that any party has within two months next before the date of such order has been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date...... A reading of the aforesaid section indicates that under the Old Code, the Magistrate had jurisdiction to consider' a wrongfully dispossessed party to be in possession provided the dispossession took place two months prior to the passing of the preliminary order. It appears to me that the aforesaid provisions caused great hardship in several cases. Instances were not wanting when the passing of a preliminary order was delayed for some reason or the other with the result that the period of two mouths from the date of wrongful possession lapsed and the party wronged was without a remedy under the provisions of Section 145 CrPC. It was to obviate the difficulty and to find a solution to this problem on a more equitable arid just basis that Section 145 (4) of the Criminal Procedure Code was amended by the Code of Criminal Procedure 1973. The relevant portion of the amended Section 145 (4) is quoted below:- "The Magistrate shall then, without reference to the merits of the claims of any of the parties to a right to possess the subject of dispute... ~__decide whether any and which of the parties was, at the date of the order made by him under sub-section (1) in possession of the subject of dispute. Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within 2 months next before the date on which the report of the police officer or other information was received by the Magistrate or after that date and before the date of his order under sub-section (1) he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1)". The instant case is a typical example justifying the amendment of the proviso to Sec. 145. An application by Abdul Rasheed was filed on 8th August, 1977 and he alleged his wrongful dispossession on 14th July, 1977. Thus the application was made within 2 months of his forceful dispossession. The Magistrate called for the report from the police, but the police remained silent and did not submit any report. Thereafter Abdul Rasheed prayed that a reminder be sent to the police vide his application dated 27th September, 1977. A reminder was sent but yet the police remained inactive and silent and did not submit any report. Disgusted with this inactive and collusive action of the police Abdul Rasheed was compelled to move another application before the Magistrate on 11-10-1977 requesting him to call far a report from a more responsible officer, the Tehsildar. The Tehsildar reacted to this direction of the Magistrate and submitted his report on 24th January 1978 >on which the preliminary order was passed. It is thus clear that the collusive action of the police and the Opposite Party Mohd. Sabir and Mst. Ghafooran had deferred the sending of the police report. The rights of the parties should not be allowed to be defeated by such dubious inaction of the police. Therefore, the amendment of the proviso to Sec. 145 (4) was amply justified and displays the spirit and the purpose for which it has been made. The amendment clearly seeks to avert an injustice being caused to a party on account of such collusive action. As is clear from the amended proviso it also protects a person who is wrongly dispossessed after the filing of an application under Sec. 145 CrPC and before the passing of a preliminary order. Such contingencies have also arisen which were sought to be remedied by the amendment. In those cases also the Magistrate had been authorised to treat the party so dispossessed, as though that party had been in possession on the date of the preliminary order passed under sub-section (1) of Sec. 145 CrPC and restore possession.;