- (1.) THIS is a revision by Kewaldas and arises out of a proceeding under sec. 145 Cr. P. C.
(2.) KEWALDAS was the applicant in the trial court. He is a Mahant of the Vishnoi community and the opposite-parties are also Vishnois. The dis-pute relates to a certain house situate in village Kolayat. On the 23rd Feb. , 1953. KEWALDAS made an application in the court of the Sub-Divisional Magis-trate, Bikaner alleging that he was in possession of the disputed bouse as owner but the opposite parties were bent upon forcibly dispossessing him of it and that there was a likelihood of a breach of the peace. KEWALDAS further prayed that the property be attached forthwith and that if the Magistrate came to the conclusion that he had already ben dispossessed, possession be restored to him under sec. 145 Cr. P. C. The Magistrate recorded the statement of the petitioner on the same day and sent the application to the police for immediate inquiry and report. The police reported on the 7th March, 1953, that the petitioner KEWALDAS was formerly in possession of the disputed p?operty but that lately he had been thrown out of possession and that there was a danger of a breach of the peace. This report was placed before the Magistrate on the 14th March, 1953. All that he said on that day was that the papers be put up to him for further action on the 30th March, 1953. ¼oklrs dk;zokgh vkbank rkjh[k 30. 3. 53 dks is'k gks½ Thereafter the papers were put up before the Magistrate a number of hearings, viz. , 31st March, 1953. 2nd April, 1953, 3rd April, 1953. 10th April, 1953, 11th May, 1953, 17th June, 1953, 18th June, 1953, 22nd June, 1953, 2nd July, 1953 and 13th July. 1953, but nothing was done, as, shockingly enough, the Magistrate had no time to look into the papers. The next relevant date is the 27th July, 1953. On that day two of the opposite parties were present through pleader and the remaining opposite parties were ordered to be summoned, and, further, the parties who had entered appearance through pleader were directed to put in their written statements. Thereafter evidence was produced by both parties, and eventually the case was posted for arguments to the 25th January, 1955. The magistrate by his order passed on that date held that no preliminary order had been passed in this case and that as the applicant had been dispossessed of the disputed house before he filed his application, and, therefore, the Magistrate had no jurisdiction to restore possession to the applicant and further that if a preliminary order were to be passed at that date, it would clearly be beyond two months of the date of dispossession. On this view the Magistrate dismissed the application. The petitioner went in revision to the learned District and Sessions Judge, Bikaner, who affirmed the order of the trial Magistrate. The present revision has been filed against that order. It was strenuously contended before me on behalf of the petitioner that the view of the courts below that they had lost jurisdiction to give relief to the petitioner in the matter of possession inasmuch as no preliminary order had been passed and because the dispossession would date back to more than two months if a preliminary order were to be passed at the time this omission was discovered was quite wrong and unjust and deserved to be set aside. It is urged that the petitioner had made the application within a few days of the dispossession, which, according to the evidence led by the petitioner, had taken place on the 3rd February, 1953, and that the report of the police had been placed before the Magistrate on the 14th March, 1953, and further that it was no fault of the petitioner if the Magistrate omitted to pass the preliminary order immediately thereafter. It was, therefore, prayed that this Court should remit the case back to the Magistrate fur decision on the merits and if the dispossession had taken place on the 3rd February, 1953, as the petitioner's witnesses had Mated, there was a clear case tor restoration of possession, such dispossession being within two months of the date complaint. On the other hand it was equally strenuously contended on behalf of the opposite par ties that as no preliminary order had been passed, the application of the second proviso to sub-sec. (4) of sec. 145 Cr. P. C. stood ruled out altogether, and that, in any case, there was no warrant or justification for counting the period of dispossession backwards from the date of the complaint instead of the preliminary order. Alternatively, it was contended that the two months' period may at the most be counted from the 27th July, 1953, when notices were directed by the Magistrate to go to the opposite parties other than those who had voluntarily appeared on that date, and that even if the two months' time were to be so computed, the petitioner could not get the benefit of the proviso because, assuming that his dispossession had taken place on the 3rd February, 1953, such dispossession took place more than two months of that date i. e. , the 27th July, 1953. I may state at the very outset that all the trouble which has arisen in this case has been occasioned because the trial Magistrate utterly failed to pass any preliminary order as such, or even to issue the notices to the parties under sec. 145 (1), with the promptitude which he should have exercised in a proceeding of this character. That is greatly to be deplored. The question which in these circumstances arises for determination is this : whether it is open to a Magistrate where no preliminary order has been paased, or where it has been passed beyond two months of the date of the alleged dispossession, to restore possession to the dispossessed petitioner. On this question there appears to be a considerable cleavage of judicial opinion among the High Courts in our country, borne courts have held the view that where a party who is dispossessed complains of such dispossession soon after but there is a delay on the part of the Magistrate in passing the initial order so that dispossession dates back to more than two months thereof, he should get the benefit of the proviso, and this view appears to be mainly founded on the consideration that no party should be made to suffer tor the fault or remissness of the court. In some of the cases which have adopted this view, it may be noted that the two months period appears to have been held to be countable from the date when the Magistrate sent the case to the police for inquiry and in some others from the date of the complaint. This view has found favour with the Madias High Court in (Chinchilada) Krishnam Raju vs. Chintala Swame Naidu (1), R. Srinivasa vs. Dasrotha Rama (2) and Narayanans. Kesappa (3), which, overrules the contrary view in Arunchala. vs. Chinnadurai (4); and the Hydrabad High Court in Bhadramma vs. Kotam Raj (5), which dissented from the contrary view taken in Fatima vs. Rang Rao (6); and by the Orissa High Court in Subarna vs. Kartika (7) which also dissented from the contrary view taken in Janama vs. Draupadi (8 ). On the other hand, the Allahabad, Assam, Andhra, Lahore, Nagpur, Patna and Travancore-Cochin High Courts and the Oudh Chief Court and the Judicial Commissioner's court in Sind have taken the view that in a case of forcible dispossession, the period of two months can only be counted backwards from the date of the preliminary order, and that this period does not admit of any extension, and if,, for any reason, good, bad or indifferent, the Magistrate fails to pass a preliminary order within two months of the alleged dispossession, the person who is forcibly dispossessed cannot get the benefit of the proviso. See Ghulam Hussain vs. Sajawal (9), Meharban vs. Bhola (10), Emperor vs. Sunder Lal (11), Muhammad Ali vs. Shamsul Haq (12), Mahmood Beg vs. Ehsan Beg (13), Tolan. Kalita vs. Bhuban Chandra (14), Lakskmi Narain vs. Jugeshwar (15), Subha Raju vs. Koneti Raju (16) and Padmanabhan vs. Padmanabhan (17 ). I do not consider that it would be profitable to deal with the cases cited above individually. All I desire to say is that the question for deter-imnation before me is : which of these rival views is to be preferred. With a view to arrive at a proper decision, I consider it desirable to concentrate attentation on a few salient points as to the scope and intendment of sec. 145 Cr. P. C. Firstly, what is the objective of the legislature in enacting sec. 145 Cr. P. C. ? The objective clearly is the preservation of the peace and the prevention of its breach which is not infrequently imperilled by disputes relating to land or water or the boundaries thereof. The section, therefore, focuses its attention on possession (and not on the right to possess or on title) of the property in dispute. Secondly ; the section aims at determining possession not in an ultimate scope but with reference to a specific point of time and that point of time is the date when the Magistrate (on being satisfied that the basic condition of sec. 145 are fulfilled) assumes jurisdiction to decide the dispute presented to him and passes a preliminary order and embarks on an inquiry. He is required according to the plain language of the entire section to determine whether any and which of the parties was at the relevant date mentioned above in possession of the property in dispute, and where he is able so to determine, he must declare such party in possession and forbid the rival party from interfering with it until the party entitled to possession is evicted therefrom in due course of law. Where the Magistrate is unable to find as to which of the parties was in actual possession at the relevant date or finds that none of them was in possession at all, he is empowered to attach the property under sec. 146 Cr. P. C. until such time as a competent court has determined the rights of the parties, And according to the recently amended sec. 146, the Magistrate in case where he is of opinion that none of the parties was in possession, or he is unable to decide as to which of them was in possession at the point of time hereinbefore mentioned, he is not only authorised to attach the property but also to draw up a statement of the facts of the case and forward the record of the proceeding to a civil court of competent jurisdiction to decide the question whether any and which of the parties was in possession of the subject of dispute at the relevant date under sub-sec. (4) of sec. 145. The civil court is then to peruse the evidence on the record and take such further evidence as any be produced by the parties, and it has to decide the question of possession as referred to it, The civil court having determined the question must transmit its finding to the criminal court, and the criminal court must then decide the matter in accordance with such finding. The order of the criminal court on such a reference has been made final and incapable of being questioned on appeal or in revision, and has been made subject only to the decision of a civil court of competent jurisdiction. If I may say so. with all respect, the new amendment clearly-supports the position that the criminal court is concerned to determine possession with reference to the limitations clearly laid down in the section. Primarily the possession must be determined as on the date of the preliminary order and this brings me on to the second proviso of the fourth sub-section of sec. 145. Thirdly, therefore where the person complaining under the section has not been actually dispossessed and dispossession is merely threatened, the matter is indeed simple, and the Magistrate, if he finds on an inquiry that he was in possession at the relevant time, must declare him to be possession and prohi-bit the other party from interfering with it until the former is evicted therefrom in due course of law. But what is to happen where the applicant has been already dispossessed at the time of his application or he stands dispossessed shortly afterwards. In such cases, section 145 definitely provides for a fiction of law and ordains that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two months next before the date of the initial or the preliminary order, he may treat the party so dispossessed as if he had been in possession at the date of the initial or the preliminary order. This proviso is obviously permissive and comes into play under certain limited circumstances only, namely, where the dispossession takes place within two months next before the date of such order, that is the order passed by the Magistrate under sub-sec. (1) of sec. 143 by which he sets out on an inquiry as to possession. Let it be remembered that it should not have been difficult for the legislature to have provided for the commencement of the period of two months from any other date, namely, the date of the complaint, or the date of sending of the application to the police for inquiry, or the receipt of such report or any other point of time if it had so wished. In other words the framers of the Code, to my mind, contemplated simply this that forcible possession would be relieved against provided such dispossession was within two months of the date of the preliminary order and not beyond. Fourthly, the view is well settled so far as this Court is concerned that sec. 145 lays down certain basic conditions for the attractability of a Magistrate's jurisdiction to decide disputes relating to land or water within the meaning of that section and also provides the procedure for the proper exercise of such jurisdiction and that these two matters deserve to be kept distinct and should not be confused with each other. I might usefully reproduce the following extract from the judgment of this Court in Durjansingh's case (18) to Which I was a party. "our view is that a Magistrate's jurisdiction or lack of it under sec. 145. Cr. P. C. , arises not from the presence or absence of a formal order under sec. l45 (1) or again from a state-ment of his grounds as to his satisfaction of likelihood of a breach of the peace, or his failure to record such grounds, but the Magistrate really acquires jurisdiction, from certain basic conditions laid down in sec. 145 viz. (1) that there exists a dispute concerning any land of water or boundaries thereof within the local limits of his jurisdictions, and (2) that he is satisfied from some information whether it be a police report or any other information, and the Code does not limit the kind of informa-tion upon Which a Magistrate may act, that such dispute is likely to cause a breach of the peace. As soon as these conditions are fulfiled, the Magistrate is at once seized of the dispute, and acquires jurisdiction to act under sec. 145. What he does thereafter, however, namely, that he makes an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his court in person by pleader within stated time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute, and a matter of procedure. And if a Magistrate commits any error with respect to any of the matters lastmentioned, his errors are merely procedural and cannot be considered to have the effect of depriving him of jurisdiction which he undoubtedly possessed at the commencement of 'he proceedings. We are unable to accept the view that mere procedural errors can have the effect of destroying jurisdiction duly acquired. It is true that errors of procedure as such are of varying degress and they may sometimes have the effect of vitiating conclusions of law or of fact. But whether they are susceptible to such an effcet must depend on the facts and circumstances of each case. We have no hesitation in coming to the conclusion that where there are materials on the record vesting a Magistrate with jurisdiction under sec. 145 (1), or in other words, where there is a dispute relating to land or water or bound-aries thereof within the local limits of his jurisdiction, and where he is satisfied from a police report or other information that such a dispute is likely to cause a breach of the peace, a mere omission on the part of the Magistrate to draw up a formal preliminary order or his failure to state the grounds of his being so satisfied are, by themselves, mere irrugalarities of procedure cannot have the effect of the vitiating the entire proceedings unless such failure has resulted in prejudice or failure of justice. This being the settled view of our Court, the finding of the learned Sessions Judge and of the trial Magistrate that the proceeding in the present case was a nullity merely because a preliminary order had not been passed cannot be accepted as correct in the absence of prejudice or failure of justice which are neither alleged nor proved. For the same reason, the argument of learned counsel for the opposite parties that the application of the second proviso of sec. 145 (4) is ruled out altogether because no preliminary order was passed cannot be accepted as correct for the simple reason that it would lead to inconsistency in the interpretation of the various parts of sec. 145, to wit, that the passing of a formal preliminary order is not essential for the purposes of jurisdiction under sub-sec. (1) but must be so held in so far as the application of second proviso to sub-sec. (4) is concerned. I also wish to pause here to point out that it is highly desirable that a proper preliminary order fulfilling the requirements of the first sub-section of sec. 145 should be invariably passed by the Magistrate and with all promptitude wherever he considers that a case for his assumption of jurisdiction under that section is made out, and I should not be understood at all to encourage any laxity of procedure in this respect. But all I mean to emphasize is that where on account of some accidental or unfortunate error, a preliminary order has not been passed as such, the applicant cannot be denied the benefit of the proviso merely because the Magistrate has failed to pass the preliminary order. In such cases I am clearly of opinion that the point of time when the Magistrate assumes jurisdiction and proceeds to set out on an inquiry under sec. 145 (1) and issues notices to the parties concerned must be determined and the period of two months time may well be counted from this point of time.
(3.) FIFTHLY and lastly I wish to invite pointed attention to this that proceedings under sec. 145 are not intended to and cannot be a substitute for a suit or proceeding based on title or even a suit under sec 9 of the Specific Relief Act, A person who is dispossessed and who for some unfortunate reasons cannot avail himself of the benefit of the proviso to sec. 145 (4) due to the rigour of the limitations surrounding the application thereof will still have his remedies open in the competent civil court, and to these remedies he can and should resort wherever he has a genuine case. It seems to me highly questionable whether in such circumstances he can still insist that even where the conditions laid down in this sub-section are not fulfilled, he should still be allowed his remedy under sec. 145 by straining the provisions of that section in his favour on certain considerations of hardship and inconvenience to him to which he becomes subject owing to certain reasons over which he has no control. Having thus set forth the salient considerations as to the scope and intendment of sec. 145 generally and of its sub-sec. (4) in particular, let me now turn to the question for determination before me. After a very thorough, anxious and careful consideration of the pros and cons of the rival views, I am inclined to think that the view which seeks to hold that the period of two months under the second proviso to sub-sec. (4) of sec. 145 may in certain cases be counted from the date of the complaint or from any other date than the date of the preliminary order or other than the supposed point of time when the preliminary order must be deemed to have been passed under sec. 145 (1) as pointed out by me above, cannot be accepted as the better view. I would now briefly summarise the reasons which have led me to this conclusion and which incidentally go to answer soon of the grounds which have prevailed with some courts to take the contrary view. (1) The entire scheme and language of sec. 145 and its component parts with special reference to sub-sec. (4) and its second proviso as also the language of the amended sec. 146 leave one in no doubt as to the true intention of the legislature and that intention is that primarily the magistrate under this section is required to determine possession at the date of the preliminary order or the supposed preliminary order, and where a case of dispossession arises, the Magistrate may regard the person who has been dispossessed as if he had been in possession at such date provided that he has been dispossessed within two months next before the date of such order. The language of the proviso is perfectly plain beyond the slightest doubt ambiguity and, if I may say so with respect, it does not admit of any attempt in the way of interpretation. There is no obscurity or looseness about the section at all. If the legislature had intended to extend more comprehensive relief to an applicant, under sec. 145. who has been dispossessed, it could have easily said so. But it did not. Those courts, in my opinion, which have tried to interpret the wording of the proviso by which they extend ''the period of two months from the date of the preliminary order" to two months from the due of the complaint or from the date when the Magistrate sends or receives an application to or from the police for report have gone far beyond the proper limits of interpretation and have encroached upon the field of legislation which they cannot do. (2) It is indeed well settled that when the language of the law is clear, considerations of hardship and inconvenience have no relevance for purposes of intepretation. The cardinal rule for the construction of statuses is that they should be construed according to their intention, and the intention is to be gathered from the words used. As observed by Lord Birkenhead in Sutters vs. Briggs (19), "where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislatures". (3) Then it has been said that it is true 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: but when a given state of affairs does not come within the obvious meaning of the words of the statute, i. e. 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 and it seems obvious that a case of casus omissus arises, and that looking at from this angle sub sec. (4) of sec. 145 lends itself to such a contingency. Where the preliminary order happens to be passed more than two months after the date of dispossession certain courts have, therefore, said that an order of restoration should be passed under sec 145 when the delay is not due to any fault of the parties but due to circumstances incidental to the working of the court. Some courts have taken advantage of the doctrine of nunc, protunc in coming to the same conclusion So far as the case of the casus omissus is concerned the correct rule of interpretation if I may say so with all respect is that a casus omissus cannot be supplied by the courts. Lord Halsbury said in Mersay Docks vs. Handerson (20) that "no case can be found to authorise any court to alter a word so as to produce a casus omissus. " In Crawford vs. Spooner (21) their lordships of the Privy Council said, "we cannot aid the Legislature's defective phrasing of an Act ; we cannot add and amend, and by construction, make up deficiencies which are left there. ' Again in Whiteley vs. Chappell (22) Hannen J, said, "it would be wrong to strain words to meet the justice of an individual case because it might make a precedent, and lead to dangerous consequences in other cases. " In Gwynne vs. Burnett (23) Lord Brougham observed "if we depart from the plain and obvious meaning. . . . . . . . . . . . . . . we do not in truth construe the Act, but alter it. We add words to it, or vary the words in which its provisions are couched. We supply a defect which the Legislature could easily have supplied, and are making the law, not interpreting it. This becomes peculiarly improper in dealing with a modern statute. . . . . . . . ___the prolixity of modern statutes, so very remarkable of late, affords no grounds to justify such a sort of interpretation. I should like to point out with respect that only lately our Code of Criminal Procedure came in for a fairly extensive review in the Parliament, and although secs. 145 and 146 have been the subject of fairly extensive amendments, sub sec. (4) and its provisos have been allowed to remain as before. Not only that, the recent amendments to sec. 146 have, in my opinion, only placed an added emphasis on the point of time envisaged in the proviso to sec 145 (4 ). My conclusion, therefore, is that it is not the business of the courts to relieve against the express provisions of the statute by resort to doctrines whose applicability in my humble judgment is at the best a matter of serious doubt in a case of this kind. From the above discussion, I am definitely of the opinion that a Magistrate acting under sec. 145 can restore a dispossessed applicant to possession only where the dispossession complained against is within two months of the preliminary order where it has been passed: but where it has not been passed, the period of two months has to be commenced from the point of time when the Magistrate assumed jurisdiction, and initiated an inquiry within the meaning of sec. 145 (1) as already explained by me above and that the Magistrate cannot order restoration of possession where the dispossession is more than two months old from the date of preliminary order actual or supposed. It is true that on this view certain cases of dispossession are bound to go without any relief in his way of restoration of possession so far as action under sec. 145 Cr. P. C. is concerned, because the passing of a preliminary order may get delayed for one reason or another, sometimes due to the fault of the court, but at other times attributable to reasons for which no particular party is to be found blameworthy. But I am clearly of opinion that in all such cases the party concerned must seek its remedy not under the Criminal Procedure Code but under other suitable provisions of law, for the reason that sec. 145 is a limited remedy and must be applied having regard to the limitations which are inherent in it. Let us now apply the conclusions to which I have come above to the facts and circumstances of the present case. It is a pity that in this case the Magistrate, although he had received the report from the police as early as the 7th March, 1953, did not care to apply his mind to the report until the 27th July, 1953. Even on that date he did not care to pass a preliminary order and merely noted the presence of some of the parties who were present, and directed notices to go to the remaining ones. Meanwhile the case had come up to him about a dozen times or so, but every time he had neither the time nor the inclination to apply his mind to the report of the police. This to put the matter plainly is highly reprehensible and betrays the completest disregard of his functions and responsibilities on the part of the Magistrate and in a way sets at naught the entire object and intention of the legislature in enacting sec, 145. Be that as it may, the question still remains whether the case of the applicant falls within the ambit of the second proviso to sub-sec. (4) of sec. 145. On the view propounded by me above, even though a preliminary order was not passed in this case, we must locate the point of time when the Magistrate may be presumed to have really assumed jurisdiction and initiated an inquiry. This inquiry was certainly not initiated when the mere complaint was received nor when the Magistrate asked for a police report nor even when the police report was received. For the first time it appears that the Magistrate applied his mind to it, if at ail he did so on the 27th July, 1953. Now according to the evidence produced by the petitioner Kewaldas in the Magistrate's court, his dispossession had taken place as early as the 3rd February, 1953, although he suppressed this fact in his application filed on the 23rd February, 1953. It is clear, therefore, that his dispossession was more than two months old on the 27th July, 1953. The result is that the petitioner cannot claim the benefit of the proviso in question. That is not to say, however, that he is without any remedy, for it is open to him to seek one in the competent civil courts having jurisdiction over the subject-matter in dispute. There is one more point which deserves a brief mention and that is that the courts below were wrong in simply dismissing the petitioner's complaint. The object of section 145 is to put a quietus to disputes relating to immovable property as leading to a breach of the peace, and to that end, the Magistrate must find out which party is in possession at the relevant time, that is, the time of the preliminary order, and in case of wrongful dispossession the Magistrate may also treat the party dispossessed as if he had been in possession at the date hereinbefore mentioned and where the Magistrate can or does come to a conclusion which of the parties was in such possession, it is his duty to declare such party in possession and not merely dismiss the application. In other words, the Magistrate should have, on the material before him, declared the possession of the contesting opposite parties and forbidden all disturbance of such possession until they are evicted in due course of law for that is the only way the object of sec. 145 can be fulfilled and danger to a breach of the peace kept under control. I order accordingly. The result is that this application fails and is hereby dismissed in the light of the observations made above. . ;