- (1.) THIS is a reference by the Sessions Judge Bharatpur, recommending that the order passed under section 145 Cr. P. C. by the Magistrate First Class, Dig, on 5th July, 1949, for the restoration of possession over a "gaint" to Medi be set aside.
(2.) THE facts of the case are that one Medi filed an application under the said section against Sanwal and 4 others in the Court of the First Class Magistrate, Dig, on 5th July, 1949, alleging that Sanwal, Birju and others had taken forcible possession over a "gaint" on 2nd July, 1949, and that there was an apprehension of the breach of the peace. THE said Magistrate, after sending for a report from the Police and on being satisfied that a dispute likely to cause a breach of the peace concerning agricultural land existed made a preliminary order in writing on 7th September, 1949 and called upon Sanwal and others to produce their evidence relating to the possession of the disputed land. THE said Magistrate after holding an inquiry came to the conclusion that Medi was forcibly dispossessed by Sanwal and others on 2nd July, 1949, and that he was in possession of that and within two months of the date of dispossession and, therefore, passed an order on 30th October, 1949 for the restoration of possession over that land to Medi. Sanwal and others moved the Sessions Judge, Bharatpur, in revision against this order of the First Class Magistrate, Dig, and hence this reference. The recommendation of the learned Sessions Judge is based on the ground that as the Magistrate passed the preliminary order after two months of the date of the alleged dispossession he was not justified in ordering under section 145 (4) Cr. P. C. restoration of possession over the disputed land to the complainant. The learned Sessions Judge has also referred to certain ruling of the various Indian High Courts to show that when a preliminary order under section 145 Cr. P. C. is drawn up after two months from the date of dispossession the party who was dispossessed before the date of such preliminary order cannot be put back into possession under that section. The learned Government Advocate has also supported this reference. The recommendation of the learned Sessions Judge is well founded and must be accepted. In proceedings under section 145 Cr. P. C. the Magistrate has to make an inquiry as to who was in actual possession on the date of the preliminary order and the Magistrate has also been given discretion to treat a party who has been within 2 months before the date of the preliminary order forcibly and wrongfully dispossessed as if he had been in possession at such date. The language of sub-clause (4) to section 145 Cr. P. C. is precise and unambiguous. When the Magistrate comes to the conclusion that one of the parties was in possession at the date of the preliminary order he has to issue an order declaring such party to be entitled to possession of the disputed land until evicted therefrom in due course of law and forbidding of dispossession until such eviction and when the Magistrate proceeds to treat the person who was forcibly and wrongfully dispossessed within two months from the date of the preliminary order,as if he had been in possession at the date of the preliminary order he has discretion to restore to possession the party forcibly and wrongfully dispossessed. It is evident, therefore, that only that party which was forcibly and wrongfully dispossessed within 2 months from the date of the preliminary order can he put back into possession of the disputed land. The period of 2 months mentioned in proviso (4) to section 145 Cr. P. C. cannot be counted from the date of the complaint or the date of dispossession. Nor such period can be extended by the Magistrate. Even if the complaint is made immediately but through delay in the action of the Magistrate the preliminary order is not passed within 2 months of the date of dispossession. Formerly the Madras High Court in Srinivasa Vs. Dasaratha, 52 Mad. 66, was of the view that the proviso to sub-section (4) of section 145 Cr. P. C. should be interpreted liberally and not literally but that view was dissented from by the same High Court in A. I. R. 1945 Mad. 216 following 1931mad Cr. C. 168. The views of the Allahabad, Nagpnr and Lahore High Courts and the former Oudh Chief Court are also to the effect that the date from which the period of 2 months is to be computed is the date of the preliminary order and not the date of complaint and the period of 2 months cannot be extended {vide 5 Luck. 440; A. I. R. 1941 Oudh 515; A. I. R. 1935 All. 35; A. I. R. 1933 Lah. 143 and A. I. R. 1936 Nag. 271.) In this case the preliminary order was made by the Magistrate after 2 months of the alleged date of dispossession of the disputed land for more than 2 months before the date of the preliminary order the Magistrate was not justified in law in ordering restoration of possession of the disputed land to Medi and the order of the Magistrate therefore, cannot be upheld. The recommendation of the Sessions Judge, Bharatpur, is, therefore, accepted and the order of the Magistrate dated 5th July, 1949, ordering restoration of possession over the disputed "gaint" to Medi is set aside. .;