Dr. J.A. Thathruvasamy vs Raja and 2 others

The revision petitioner is the counter petitioner A party and respondents 1 to 3 are the counter petitioners B Party in M.C.No.79 of 1987 on the

file of the Sub Divisional Magistrate, Pondicherry and the respondent and petitioners respectively in Criminal Revision Petition No.14 of 1993 on

the file of the Principal Sessions Judge. Pondicherry. The order dated 17.3.1994 in criminal revision petition No.14 of 1993, which set aside the

final order dated 17.9.1993 passed u/s 145(6) of the Code of Criminal Procedure in M.C.No.79 of 1987 in favour of the counter-petitioner A

party, is challenged in this revision before this Court. In this order, the parties to the revision petition will hereafter be referred to as the counter

petitioner A party and counter petitioner B party for convenience sake.

A few facts have to be necessarily stated in this order so as to understand the points in controversy and they are as follows: A vacant land

measuring 1 acre 95 centiares within four well defined boundaries in R.S.No.105/10 with an incompletely constructed superstructure is the subject

matter of the proceedings u/s 145 of the Code of Criminal Procedure before the Executive Magistrate and it would be hereinafter referred to as

the property. It appears that the counter petitioner first B Party was the owner of the said property. The said property was agreed to be sold by

the said owner in favour of the counter petitioner A Party''s wife under an agreement of sale dated 13.8.1984 and the owner had agreed to

complete the construction till the first floor of the property. As the construction activities were going slow, Counter Petitioner A Party''s wife was

requested to occupy the property and thus she was put in possession of the property on 7.10.1984 and the house warming ceremony was also

performed. There was, an incident on 6.6.1985 when the counter petitioner B Party alongwith their supporters were stated to have made attempts

to interfere with the counter petitioner A Party''s possession of the property. This has resulted the counter petitioner A party in filing a complaint

with the Police Station having jurisdiction over the matter. However on that complaint, no legal action was taken, but the parties seem to have been

enquired by the police which resulted in the cessation of the illegal activities. According to the Counter Petitioner A Party on 7.12.1985 when he

came home from the Church, he found some strangers in the property and ultimately to his surprise and shock the counter-petitioner B party with

their supporters stormed into the property and the resistance put forward oh behalf of the counter petitioner A party was of no use: Thus the

counter petitioner A party was dispossessed by the counter petitioner B Party on 7.12.1985. The other details relating to the incident on 6.6.1985

and 7.12.1985 need not be stated. However the fact put forward by the counter petitioner A Party is that he was dispossessed on 7.12.1985 from

the property.

On this dispossession counter petitioner A party filed a petition before the Executive Magistrate (Sub Collector). Pondicherry u/s 145 of the

Code of Criminal Procedure seeking his intervention. On the same day, it appears from the records, the. Executive Magistrate forwarded the

petition to me Tahsildar having jurisdiction for enquiry and report immediately. The records further show that the Tahsildar sent his report dated

6.1.1986. On the basis of the Tahsildar''s report, the Executive Magistrate passed on order dated 7.4.1986 on the complaint of the counter

petitioner A party which is to the following effect:-

Returned.

The report of the Tahsildar, Taluk Office. Pondicherry dated 6.1.1986 reveals that there is no likelihood of breach of peace with regard to the

possession of the building. Hence returned.

Counter Petitioner A Party challenged that order before this Court in Crl.M.P.No-6381 of 1986. A learned single judge of this Court in the above

mentioned Miscellaneous Petition when it came up for admission, passed an order dated 10.7.1986 which is to the following effect:

The Sub Divisional Magistrate, Pondicherry has not followed the procedure contemplated u/s 145 of the Criminal Procedure Code while passing

the order dated 7.4.1986 dismissing the petition filed by the petitioner. The Magistrate has not applied his mind and has merely acted on the report

received from the Taluk Office, Pondicherry.

In the circumstances, the order dated 7.4.1986 is set aside. The Sub Divisional Magistrate has to call for a report from the Police Officials or

give an opportunity to the petitioner and apply his mind before passing the order.

The matter is remitted to the Sub Divisional Magistrate, Pondicherry so as to enable him to pass fresh orders as per the provision of Section

145 of the Criminal Procedure Code.

It appears from the records that pursuant to the above order the original petition dated 11.12.1985 was retyped with the date as 11.12.1985

and presented before the Executive Magistrate on 13.2.1986. This case was taken on his file as M.C.No.79 of 1987. The seal of the office of the

Executive Magistrate on the docket of this petition establishes this position. There is another endorsement dated 9.7.1987 on the docket of this

petition which is to the following effect: ""A report from S.H.O.D'' Nagar was called on 18.8.1986 which is still awaited. The last reminder sent on

2.7.1987 was also not responded even though a specific date line was fixed to reply. Hence the petitioner may be given opportunity to be heard.

Call on 20.7.1987. Give notice to police also"". The records further show that on behalf of the counter petitioner A party a memo dated 18.8.1987

was filed before the Executive Magistrate. This memo shows that when the petition was filed before the Executive Magistrate alongwith the High

Court order, the original petition returned by the Magistrate on 7.4.1986 was not filed and as the same was being filed alongwith that memo, a

request was made to receive the same. Thus the Original Petition which was returned by the Executive Magistrate by order dated 7.4.1986 had

also come on record.

Thereafter, the docket entries for M.C.No.79 of 1987 shows that the petition had undergone innumerable adjournments and in this order, I am

referring only to a few important dates and the endorsements made by the learned Executive Magistrate to understand the procedure adopted by

the Executive Magistrate after the order dated 9.7.1987 referred to above:-

22.7.1987: Memo filed by Sri. Lakshminarayanan; petitioner enquired; issue notice to other side; Call on 29.7.1987.

29.7.1987: Petitioner is present Petitioner Counsel is otherwise engaged. Call on 10.8.1987.

10.8.1987: Notice may be served to respondents. Batta is yet to be filed. Call on 26.8.1987.

9.12.1987: Counter filed. Petitioner''s Counsel and respondent''s Counsel are present. Post on 23.12.1987 for enquiry on petitioner''s side.

29.12.1987: P.W.1 cross-examined. Posted to 9.3.1988 for enquiry of the other witnesses.

22.3.1988; Crl.M.P. filed by petitioner''s Counsel to summon Station House Officer D'' Nagar and the doctor, JIPMER; otherwise counsel has

no objection. Batta Memo filed. Call on 11.4.1988 to enquire S.H.O., D'' Nagar.

16.5.1988: Counsel for B Party prays time for arguments. S.H.O. is present and examined; Crossed by B Party Counsel. The summons for the

doctor was returned as he is out of station on leave. It may be re-served. Posted to 23.5.1988 for arguments on maintainability.

30.5.1988: Written arguments filed by Sri. Devadoss. For counter arguments call on 6.6.1988.

8.8.1988: Reply arguments filed by A party and Crl.M.Ps. filed by B Party. Call on 17.8.1988.

5.10.1988: Crl.M.P.No.378 of 1988 in M.C.79 of 1987 is dismissed with the following observations:(1) This Court enquired into the matter as

per the direction of High Court, Madras to find out the prima facie of the case. (2) Order u/s 145(1) may be issued as per the law to proceed

further. Posted to 17.10.1988. Pronounced in open Court.

It appears from the records that Crl.M.P.No.378 of 1988 appears to be an application filed by the counter petitioner B Party to stay the

proceedings in MC.No.79 of 1987 on the ground that a civil suit bearing No.O.S.1460 of 1986 was pending. The reply arguments dated

8.8.1988 filed by the counter petitioner A Party shows that the above-mentioned suit was dismissed for the second time and as on that date there

was no civil suit pending. Therefore it is clear that M.C.No.79 of 1987 which was taken up afresh for enquiry on 9.7.1987 underwent innumerable

adjournments, and evidence came to be recorded before the preliminary order u/s 145(1) of the Code of Criminal Procedure came to be passed

for the first time on 5.10.1988. It appears that before passing of the preliminary order dated 5.10.1988 as stated above, the petitioner was

examined and cross-examined in full and the Station House Officer was also examined in full on the side of the petitioner. The preliminary order

dated 5.10.1988, in M.C.No.79 of 1987 reads as follows: ""Whereas it has been made to appear to me from the information laid by the petitioner

herein and I am satisfied on perusal of the records, placed before me that a dispute likely to cause breach of the peace existed between the

petitioner and the counter petitioner concerning the possession and enjoyment of the lands mentioned in the schedule below and a property lying

within my jurisdiction an imminent breach of the peace is likely to develop in that area.

I, G. Theva Neethi Dhas, Sub Divisional Magistrate, Pondicherry do hereby require you to attend my Court at Pondicherry (in the premises of the

Office of the Deputy Collector (Revenue) Pondicherry) at No.6, Lal Bhahadur Street in person or by Pleader at 3.00 p.m., on 17.10.1988 and

put in your statement of claim as respects the right of the actual possession and enjoyment over the disputed property and also to file documents if

any or to adduce in the affidavit the evidence of any such person as you rely upon as regards your claim"".

From the date of the issue of the preliminary order viz., 5.10.1988 again the proceedings underwent a number of adjournments. It appears that

the counter petitioner A Party, who was already examined in this case as P.W.1, was further examined and cross-examined and the Station House

Officer, D'' Nagar Police Station was examined again and cross examined as well as Counter Petitioner 2 and 3 of B Party were examined as

R.W.1 and R.W.2. Ultimately after several adjournments, the final order dated 17.9.1993 came to be passed by the Executive Magistrate in

favour of the Counter Petitioner A Party. The learned Executive Magistrate on analysing the materials placed before him held that the counter

petitioner A Party was forcibly and illegally dispossessed from the property and thus therefore the counter petitioner A party must be treated as if

he was in possession of the property on the date of the preliminary order passed on 5.10.1988 u/s 145(1) of the Code of Criminal Procedure.

Accordingly, the learned Executive Magistrate declared that the Counter Petitioner A Party is entitled to the possession of the property until

evicted therefrom in due course of law and disturbance of such possession until such eviction was forbidden. The counter petitioners B Party were

directed to restore possession of the property to the counter petitioner A party. This order was challenged by the counter petitioner B Party before

the Court of Session, Pondicherry. The learned Judge allowed the revision by order dated 7.3.1994 which is challenged in the present revision. In

the course of that order, the learned District Judge found that dispossession having taken place as early as 7.12.1985 and the preliminary order

having come to be passed on 5.10.1988, it cannot be said that the dispossession took place within two months before passing the preliminary

order. The sessions Judge appears to be of the view that unless dispossession is proved to have taken place within two months prior to the

preliminary order, no order u/s 145(1) of the Code of Criminal Procedure could be passed. Relying upon a judgment of this Court reported in

Athiappa Gounder and Others Vs. S.A. Athiappa Pandaram, , the learned Judge held that the impugned order is against law and the same is liable

to be set aside.

I heard Mr. R. Subramaniam, learned counsel appearing for the revision petitioner; Dr. V. Suresh, learned counsel appearing for the

respondents 1 to 3 Mr. R. Natarajan, learned Additional Public Prosecutor, Pondicherry and Mr. R. Karthikeyan, learned Government Advocate

on the Criminal Side. The following points emerge from the submission of the learned counsel on either side for consideration by me in this revision.

(A) Whether the procedure adopted by the Executive Magistrate in sending notice to the counter-petitioner B party and allowing them to

participate in the proceedings by engaging the counsel or otherwise even before the passing of the preliminary order u/s 145(1) of the Code of

Criminal Procedure is justifiable or not in the eye of law?

(B) Whether the dispossession which took place in this case on 7.12.1985 could be said to have taken place within two months prior to the

preliminary order dated 5.10.1988.

(C) Whether the breach of peace occurring on the date of dispossession should necessarily continue to exist from that date till the preliminary order

is passed or the final order is passed.

(D) Whether the preliminary order passed by the Executive Magistrate satisfies the requirements of law?

(E) Whether the transfer of the property by one of parties to the proceedings in favour of a third party would in any way interfere with the power

of the Executive Magistrate functioning u/s 145 of the Code of Criminal Procedure to pass a final order.

(F) How far the pendency of the proceedings in a Civil Court would have the impact on the proceedings u/s 145 of the Code of Criminal

Procedure?

Point A:- The Executive Magistrate gets jurisdiction to proceed in accordance with Section 145 of the Code of Criminal Procedure only when

he passes a preliminary order u/s 145(1) of the Code of Criminal Procedure. The authority for this proposition dates back to Pakamaraja Naicker

and Others Vs. Chidambara Nadar and Another, followed by a number of judgments of this Court, the last of which is 1992 L.W. 679. It has

been held throughout that the absence of a preliminary order u/s 145(1) vitiates the entire proceedings. The Executive Magistrate gets the power to

require the parties concerned in such dispute to attend his court and to put in their respective written statements only after such a preliminary order.

But at the same time, it must be noticed that the Executive Magistrate, before whom a report or other information is put up about a dispute likely to

cause breach of peace is shown to exist, is not bound to immediately act on it and proceed to pass a preliminary order irrespective of the fact

whether that report or other information discloses a dispute likely to cause a breach of peace. In other words the Executive Magistrate has to

apply his mind to the report or the other information placed before him before proceeding further in accordance with the section. Under these

circumstances, even at the threshold stage, if the Magistrate is not prima facie satisfied, either on the report or on the other information, about a

dispute likely to cause breach of peace existing, he need not necessarily terminate the proceedings immediately. On the other hand, it is open to

him to probe further even at that stage by calling for more information from the police source or from the person who laid the information or from

other source to satisfy himself about the existence of the dispute likely to cause breach of peace. In Gurumurthappa v. Bangalore Corporation,

AIR 1969 Mys. 160 an information was laid before the Executive Magistrate, alleging forcible dispossession. The Executive Magistrate called for

a report from the police regarding the factual situation and the report from the police disclosed materials contra to that of the petitioner. Acting on

the report of the Police Officer, the Executive Magistrate refused to proceed u/s 145 of the Code of Criminal Procedure. Though the issue whether

the magistrate was justified in calling for a report from the Police Officer or not was not the issue in that case, yet the Police report was acted upon.

In Syed Mohammed Vs. K.C. Raman and Others, it has been held as follows:

Law and order are primarily the concern of the police; therefore it is but natural that before initiating a proceeding u/s 145 a Magistrate should be

either moved by the police or. if moved by a private party, he should call for a report from the police as regards the likelihood of the breach of the

peace. It may be that in certain exceptional circumstances he may act on other information but that, information must come to him from

disinterested source.

In Sreeman Kumara Tirutnairaja Bahadur, Rajah of Karvetnagar v Sowcare Lodd Govind Doss Krishna Doss, ILR 29 Mad. 561, the issue was

about the enquiry to be held before issuing the preliminary order by the magistrate. In that case, it has been held as follows:

In order that a Magistrate may have jurisdiction to act u/s 145 of the Code of Criminal Procedure, he must be satisfied from a Police report, or

other information, that a dispute likely to cause a breach of peace exists concerning any land, etc. Where there is no Police report, the statement of

interested parties ought to be received with great caution and ought not to be acted upon unless they are corroborated by the testimony of less

interested persons. The opposite party also, ought to be given an opportunity of Cross-examining the party making such statements before the

magistrate takes any action on them.

In this decided case, the District Magistrate had only the petition from a Deputy Tahsildar in the employment of one of me parties to the

proceedings. The learned Judges who disposed of this case was of the opinion that the person, under whom the Deputy Tahsildar was in the

employment, was most anxious that the District Magistrate should take action under the Criminal Procedure Code. In that context the learned

Judges said that the District Magistrate should have received the Deputy Tahsildar''s statement with great caution and should have declined to act

on them unless they were corroborated by some less interested persons. The officials should also have been summoned before the District

Magistrate and examined on oath, full opportunity being given to the vakil of the Rajah of Karvetnagar to cross-examine him. In R.H. Bhutani v

Miss Mani J Desai, 1969 MLJ 321 the Honourable Supreme Court of India while dealing with the scope of Section 145 of the Code of Criminal

Procedure held as follows:

The language of that sub-section is clear and unambiguous that he can arrive at his satisfaction from the police report or ''from other information''

which must include an application by the party concerned. The observation of the High Court that a police report ought to have been called for is

unjustified; it may be a safe rule but not indispensable.

In Durga Din Vs. Smt. Rani Udai Kunwar, it was held as follows:

If a Magistrate is very cautious and chooses to call the parties in order to be satisfied as to whether there was or was not an apprehension of a

breach of the peace and passes an order only after hearing them, or in their presence, the order cannot be said to be invalid.

The line of thinking of the Hon''ble Judges who had the occasion to deliver the judgments referred to above appears to be that the Magistrate

commits no harm or illegality, by making any further enquiry as he thinks fit before drawing the proceedings u/s 145(1) of the Code. The argument

of the learned counsel for the respondents 1 to 3 Dr.V.Suresh is that to call upon the counter petitioner ''B'' party to take pan in the proceedings

u/s 145(1) of the Code of Criminal Procedure would be totally without jurisdiction, because the right to call the opposite parties to appear and put

in statements would arise only after the preliminary order. The argument of the learned counsel Dr.V. Suresh is that by calling the counter petitioner

''B'' party to participate in the proceedings before the preliminary order u/s 145(1) of the Code, the Executive Magistrate is adjudicating upon the

dispute which he can do only after the preliminary order. This again appears to be a misconception of the law. What the Magistrate has done in this

case is that he called upon the counter petitioner ''A'' party to produce materials in substantiation of his case regarding the existence of a dispute

likely to cause breach of peace. Mere existence of a dispute may not be the foundation for the proceedings u/s 145 of the Code of Criminal

Procedure, but that dispute must be dispute which is likely to cause a breach of peace. Therefore when the breach of peace is the sine quo non for

proceeding u/s 145(1) of the Code of Criminal Procedure, the Magistrate can make an enquiry regarding the existence of a breach of peace and in

that process, he would not be committing any illegality in calling both the parties to participate in the proceedings. Once the Executive Magistrate

passes the stage of Section 145(1) of the Code, then his enquiry u/s 145(4) is with reference to the respective claims put forward by both the

parties regarding the factum of actual possession only. Therefore the enquiry which the Magistrate conducts at post 145(1) stage is totally different

from the enquiry which he conducts ate pre 145(1) stage. Therefore the enquiry of the Executive magistrate operates in two different spheres, viz.,

one relating to the existence of a dispute likely to result in breach of peace and the other relating to possession. In this case, the Executive

Magistrate appears to have conducted an enquiry before Section 145(1) stage only with a view to find out whether there is a likelihood of breach

of peace or not on the dispute shown. It is more so because the Executive Magistrate had not passed the final order on the basis of the materials

collected by him at the stage prior to Section 145(1) order. It is on record that the parties have been examined again in full at post Section 145(1)

stage. Further this Court, when it passed the order dated 10.7.1986 in Crl.M.P.No.6381 of 1986 directed the Executive Magistrate to give an

opportunity to the counter petitioner ''A'' Party. Therefore, I am of the opinion that the Magistrate has not committed any error in adopting the

procedure as referred to above.

Point B: It is no doubt true that dispossession took place on 7.12.1985 and the preliminary order was passed on 5.10.1988 and the final order

on 17.9.1993. Under the proviso to sub-section (4) of Section 145 of the Code as it stands to-day, if it appears to the Magistrate that any party

has been forcibly and wrongfully dispossessed within two months next before the dare 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 sub-Section(1). In this case, the counter petitioner A party filed

a complaint before the Magistrate on 11.12.1985 complaining dispossession on 7.12.1985. Under the proviso referred to above, 11.12.1985 can

be taken as the date on which the Magistrate had received the information. As per that information, the dispossession was on 7.12.1985. The

Executive Magistrate had found that dispossession took place on 7.12.1985, which falls definitely within two months prior to 11.12.1985.

Therefore, the Magistrate was justified in law in treating the counter petitioner ''A'' party was in possession on the date of the preliminary order

dated 5.10.1988. The proviso clearly applies to this. The period of two months is common to the report of a Police Officer or other information

received by a Magistrate. They may be a case where dispossession may also take place after the report of the Police Officer or after the receipt of

the information before the preliminary order.

Sub-section (4) to Section 145 of the Code of Criminal Procedure. 1898 had undergone a change when the new Code of Criminal Procedure

1973 was brought into force by Act 2 of 1974. As the Section originally stood, the Magistrate, has to conclude the enquiry as far as practicable,

within a period of two months from the date of the appearance of the parties before him and if possible decide the question whether any and which

of the parties was on the date of the order before mentioned was in possession. The first and third provisos to old sub-section (4) are not found

now. However the second proviso to old sub-Section (4) now stands re-drafted as the only proviso to sub-Section (4) of Section 145 of the New

Code. An analysis of the Second proviso to sub-section (4) as found in the old Code and the sole proviso and to sub-section (4) as found now

shows that in the case of the former, the dis-possession on should have taken place two months next before the date of such order whereas in the

case of the latter, the dispossession should have taken place within two months next before the date on which the report of a 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). There is a drastic

change in the sole proviso to Sub-Section (4) of Section 145 of the New Code when compared to the second proviso to sub-Section,(4) of

Section 145 of the old Code in thai, dispossession two months before the date on which the report of the Police Officer or other information was

received by the Magistrate was also treated as a criteria for the Magistrate to treat the person so dispossessed as in possession on the date of his

preliminary order. To be more precise under the second proviso to sub-Section (4) of Section 145 of the old Code dispossession two months

prior to the date of the preliminary order alone should enable the Magistrate to treat the person so dispossessed as person in possession on the

date of his preliminary order and any dispossession taking place prior to two months before the preliminary order cannot confer any jurisdiction on

the Magistrate to treat that person''s possession as possession on the date of his preliminary order. In view of the Legislative change in the New

Code as indicated above, dispossession two months prior to the receipt of information would also be taken into account to treat the person so

dispossessed as a person in possession of the preliminary order.

In Chunchu Narayana and Others Vs. Karrapati Kesappa, the facts are thus : One of the parties presented a petition under Section"" 145 of

the Code before the District Magistrate on 15.10.1949 alleging dispossession on 3.10.1949. The order u/s 145(4) of the Code was passed on

25.1.1950 i.e., more than two months not only after the date of dispossession, but after the date of presentation of the petition. On the finding that

the party aggrieved was entitled to possession, the District Magistrate held that the two months'' period contemplated in the proviso to Section

145(4) of the Code should be deemed to be from the date when the petition was presented and directed restoration of possession to the

complainant party. In those facts, it was held as follows:

That the order of the District Magistrate was correct. Applying, the legal fiction of none pro tunc, it was just that the preliminary order should be

deemed to have been passed on the earlier date when the petition was filed. u/s 145(1) of the Criminal Procedure Code, no appreciable time

should elapse between the presentation of the complaint or the receipt of the police report and the passing of the preliminary order. The preliminary

order should therefore be deemed to be made when the Magistrate takes cognizance of the matter and satisfies himself about the urgency. The

time taken by the Magistrate for the passing of the preliminary order should, not prejudice the party who has been wrongfully dispossessed.

Of course this judgment was over-ruled by a later Full Bench judgment of this Court reported in Athiappa Gounder and Others Vs. S.A. Athiappa

Pandaram, . It has been held in that case that the second proviso to sub-section (4) of Section 145 of the Code could be successfully invoked only

if the party has been forcibly and wrongfully dispossessed within two months prior to the date of the preliminary order and that there is no room for

applying any fiction that the date of the preliminary order should be deemed to be the date of the petition and to give relief even to persons forcibly

and wrongfully dispossessed within two months prior to the date of the petition. The second proviso is clear and unambiguous. The delay and

hardship which might result in some cases in consequence of a literal and strict interpretation will not be a justification for giving effect to the plain

words of the section.

However, it must be noticed that both Chunchu Narayana and Others Vs. Karrapati Kesappa, and Athiappa Gounder and Others Vs. S.A.

Athiappa Pandaram, came to be decided in the context of Section 145(4) of the 1898 Code. Inn view of the legislative change in sub-section (4)

of Section 145 of the Code as it stands today. I am of the respectful opinion that the said Legislative change has been brought in so as to fit the

case within the law laid down by this Court in Chunchu Narayana and Others Vs. Karrapati Kesappa, . In view of the Legislative change as

referred to above by me. it cannot be said that the judgment of this Court reported in Athiappa Gounder and Others Vs. S.A. Athiappa Pandaram,

would apply to the facts of this case and in any event in the place of the legal provision as it stands today, it cannot be said that the judgment in

Athiappa Gounder and Others Vs. S.A. Athiappa Pandaram, covers the issue in this case. In Dr. P.K. Antia Vs. Dr. Shridhar Sadashiv Katdare

and another, decided u/s 145 of the 1974 Code it had been held that the party, who had been forcibly and wrongfully dispossessed within two

months prior to the date of the making of a report to the police or of making an application u/s 145 to the Magistrate, has been given the advantage

by a legal fiction contained in the proviso to sub-sec. (4) of being treated as if it was in possession on the date on which a preliminary order was

passed. In R.C. Patuck Vs. Fatima A. Kindasa and others, it has been held as follows:

It will be seen from the facts stated above that the order u/s 145(1) was passed by the learned Magistrate on 16.3.1993. The question is

whether the Magistrate could have passed any order in favour of the petitioner under sub-section (4) of Section 145. Going by the main sub-clause

(4) of Sec. 145 it is clear that the Magistrate could initially decide who was in possession as on the date when the order u/s 145(1) was passed,on

16.3.1993. In cases where the proviso to the said sub-clause (4) applied, that is, if it appeared to the Magistrate that any party had. been forcibly

and wrongfully dispossessed, within two months next before the date on which the report of a 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), the Magistrate might treat the party so dispossessed as if

the said party has been in possession on the date of his order under sub-Section (1). In other words, if the conditions mentioned in the Proviso to

sub-section (4) were satisfied, the Magistrate could deem a person to be in possession as on the date of the order under Sec. 145(1)

notwithstanding the fact that he was not in fact in possession on that date, but lost possession earlier, within two months next before the order. In

this case unfortunately there is no material to show that any report of a Police Officer or other information was received by the Magistrate within

the period contemplated by the proviso. On the other hand, the petitioner''s admissions show that she lost possession much before the period

mentioned in the said proviso/

Under these circumstances and in view of the settled position in law and the Legislative change brought in the proviso to sub-Section (4) of Section

145 of the New Code, I am of the opinion that the learned Sessions Judge has committed an error of law in saying that dispossession having been

taken place on 7.12.1985 and the preliminary order having come to be passed on 5.12.1988, it is not open to the Executive Magistrate to treat the

counter petitioner A party to be in possession on the date of the preliminary order since dispossession took place well before two months prior to

the preliminary order.

Point C: The finding in this case is that the act of dispossession took place on 7.12.1985. The preliminary order was passed on 5.12.1988 and

the final order was passed on 17.9.1993. It is argued by Dr. V. Suresh. the learned counsel appearing for the respondents in this revision that since

act of dispossession was completed on 7.12.1985 itself, even assuming for a moment without admitting that there was a dispute on that day.

relating to an immovable property which is likely to result in a breach of peace, the dispute itself having come to an end on that day itself, there

could not have been any dispute which is likely to result in a breach of peace on the date when, the preliminary order was passed or on the date

when the final order came to be passed. According to the learned counsel for the respondents, no materials are available on record to show that

even on the date of the passing of the preliminary order as well as the date on which the final order was passed, the dispute was in existence which

was likely to result in a breach of peace. If this position is accepted, the learned counsel argues that the Executive Magistrate will have no further

jurisdiction to pass a preliminary order as well as the final order. Opposing these arguments Mr. R. Subramaniam, learned counsel appearing for

the revision petitioner would contend that such a situation is not contemplated in the eye of law and if that proposition is accepted, then no party,

who had been forcibly dispossessed would have the option of resorting to the procedure contemplated u/s 145 of the Code of Criminal

Procedure. The learned counsel in support of his argument has also brought to my notice, a judgment of the Honourable Supreme Court of India

reported in R.H. Bhutani Vs. Miss Man J. Desai and Others, . The facts in the judgment of the Honourable Supreme Court of India so far as it is

relevant to decide the correctness of the argument advanced by the learned counsel on either side on this point, is as follows:

In the proceedings before the Magistrate the main question was whether the appellant was in actual possession on June 11. 1966 and whether

he was forcibly and wrongfully dispossessed by respondent 1 or whether he had vacated and surrendered the cabin to respondent 1. After

considering the affidavits and the evidence led by the parties, the Magistrate reached the following findings: (1) that respondent I started harassing

the appellant from the beginning of June 1966 and gave threats to forcibly dispossess him if he did not vacate:(2) that the appellant''s version that

the respondent had forcibly and wrongfully taken possession of the cabin in the morning of June, 11, 1966 was true and (3) that when the appellant

and the said salim went to the cabin, the respondents manhandled them as a result of which Salim received injuries.

On these findings he held that the appellant was in actual possession on June 11, 1966 and that under the second proviso to Section 145(4),

though he had been dispossessed on June 11, he must be deemed to be in possession on June 20, 1966 when the Magistrate passed his prelimi-

nary order. By his final order dated June 22, 1967 passed under sub-sec-tion (6), the Magistrate directed restoration of possession to the

appellant till he would be evicted in due course of law and prohibited the respon-dents from interfering with his possession till then.

In the revision before the High Court, the respondents raised two conditions: (1) that the Magistrate, in entertaining the said application and

passing the said preliminary order, misconceived the scope of proceedings u/s 145, and (2) that he had no jurisdiction to pass the said preliminary

order as in the events that had happened there was no existing dispute likely to result in a breach of the peace. The High Court accepted these

contentions and set aside the order of the Magis-trate. ....................

................................

The object of section 145, no doubt is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before

the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined by a competent court.

The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute regarding an immovable property exists and

that such dispute is likely to cause breach of peace. But once he is satisfied of these two conditions, the section requires him to pass a preliminary

order under sub-section (1) and thereafter to make an enquiry under sub-section (4) and pass a final order under sub-section (6). It is not

necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist. ...................

The next ground for the High Court''s interference was that assuming that the appellant was forcibly and wrongfully dispossessed and the said

Salim was assaulted, the said dispossession was completed, a complaint of assault was lodged and the police had already taken action before the

preliminary order was passed on June 20, 1966. Therefore, it was said. there was no longer any dispute on the date of the order likely to lead to

breach of peace and consequently the order did not comply with the requirements of Section 145(1) and was without jurisdiction. This rea-soning

would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession. completes his act of

dispossession, the party so dispossessed cannot have the benefit of Section 145, as by the time he files his application and the Magistrate passes

his order, the dispossession would be complete and therefore, there would be no existing dispute likely to cause breach of peace. Such a

construction of Section 145, in our view, is not correct for it does not take into consideration the second proviso to sub-section(4) which was

introduced precisely to meet such cases. The Magistrate has first to decide who is in actual possession on the date of his preliminary order. If,

however, the party in de facto possession is found to have obtained possession by forcibly and wrongfully dispossessing the other party within two

months next preceding the date of his order, the Magistrate can treat the dispossessed party as if he was in possession on such date, restore

possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law. The proviso

is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law. So that it is not possible to say

that such an act of dispossession was completed before the date of the order. To say otherwise would mean that if a party who is forcibly and

wrongfully dispossessed does not in retaliation take the law into his hands, he should be at disadvantage and cannot have the benefit of Section

..........................

In our view, the High Court erred in holding that merely because dispossession of the appellant was complete before June 20, 1966 there was

no dispute existing on that day which was likely to lead to breach of peace or that the Magistrate was, therefore, prevented from passing his

preliminary order and proceeding thence to continue the enquiry and pass his final order. In our view, reading Section 145 as a whole, it is clear

that even though respondent 1 had taken over possession of the said cabin, since that incident took place within the prescribed period of two

months next before the date of the preliminary order, the appellant was deemed to be in possession on the date of that order and the Magistrate

was competent to pass the final order directing restoration of possession and restraining respondent 1 from interfering with that possession until the

appellant''s eviction in due course of law.

In Chunchu Narayana and Others Vs. Karrapati Kesappa, it was also held that on a proper construction of sub-section(1) of Section 145 of the

old code, there will be no difficulty in concluding that the time taken for passing the preliminary order should not prejudice the patty who has been

wrongfully dispossessed.

A perusal of the records in the case on hand before this court shows that there exist a dispute between the petitioner and counter petitioner

concerning the possession and enjoyment of the lands mentioned in the Schedule and an imminent breach of peace is likely to develop in that area.

The Honourable Supreme Court of India in the judgment reported in R.H. Bhutani Vs. Miss Man J. Desai and Others, had held as follows:-

The satisfaction under sub-section (1) is of the Magistrate. The question whether on the materials before him, he should initiate proceedings or not

is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules of law in that behalf, No hard and

fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction. The language of the sub-section is clear and unambiguous

that he can arrive at his satisfaction both from the police report of ''from other information'' which must include an application by the party

dispossessed. The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has

satisfied the Magistrate.

In view of the categorical pronouncement of the law laid down in the two judgments above referred to, I have no hesitation to decide that though

the dispute regarding possession might have come to an end long before the passing of the preliminary order itself, yet it does not disable the

Executive Magistrate to pass the preliminary order, if he is otherwise satisfied about the existence of the dispute likely to result in breach of peace,

and then proceed to pass the final orders as contemplated u/s 145 of the Code of Criminal Procedure. The Executive Magistrate in this case has

recorded his satisfaction that a dispute is likely to cause breach of peace was in existence. Therefore, since apprehension of breach of peace was

very much prevailing on the date of the preliminary order in this case and under these circumstances the preliminary order passed by the Executive

Magistrate u/s 145(1) of the Code is justified in law.

Point D: The next point urged in this case is that the preliminary order passed in this case does not satisfy the requirements of Section 145(1) of

the Code. It has been held by a long line of decisions by this Court that every preliminary order must satisfy the following tests. (a) The Magistrate

must be satisfied on such police report or other information that the dispute was likely to cause breach of peace; and (b) on the satisfaction of the

Magistrate, he must make an order in writing stating the grounds for his satisfaction in the order he intends making u/s 145(1) of the Code. This has

come to be called as the twin test. The reported judgments are Peria Mannadha Goundar and Others Vs. Marappa Goundar, ; Karthikeyan and

Six others v. Stale, 1990 L.W. (Crl.) 49 and Rajes, M.S.P. and another v. Inspector of Police, Salem Steel Plant and three others, 1993 L.W.

In the light of those judgments, if the preliminary order in this case is perused, it appears that the Magistrate from the materials collected in the

manner referred to above in this order was in a position to satisfy himself about the existence of a dispute likely to cause breach of peace. That

satisfaction is reflected in the preliminary order. But, however the preliminary order does not state the grounds for his satisfaction. Therefore the

preliminary order is bad on account of the Executive Magistrate having failed to state the grounds of his satisfaction in the preliminary order itself.

Point E: It appears from the records that the property forming the subject matter of the proceedings was sold by the counter petitioner B Party

in the year 1991 itself. Therefore on this basis it is submitted that no order u/s 145(6) can be passed since the purchaser is not a party to the

proceedings. In support of this position, the learned counsel for the respondents cited three judgments reported in Rap Chand v. Bhagalu Singh,

AIR 1954 gua.77; Ram Narayan Goswami and Others Vs. Biswanath Goswami, ; and Ram Niranjan Missir and Others Vs. Kamdeo Missir and

Others, . In the three judgments referred to above, there is no question of any of the parties to the proceedings transferring the property in favour

of a third party pending the proceedings. To agree to this contention, that once the property is transferred by one of the parties to the proceedings

to a third party, the Magistrate would loose his jurisdiction to bring the proceedings validly initiated before him u/s 145 of the Code to its logical

end would amount to putting a premium on illegalities. If that could be so, then every proceeding validly initiated u/s 145(1) of the Code could be

thwarted by one of the parties to it in effecting a transfer of the subject property. Under these circumstances, I am not inclined to agree with the

submissions made by the learned counsel for the respondents.

Point F: As far as the pendency of the civil proceedings is. concerned, it is no doubt true that there are a number of judgments touching upon

this issue. The plaint in the civil suit is dated 11.12.1985. There is absolutely no material to show whether the plaint was numbered on that day

itself. Therefore, it can be safely presumed that the plaint should have been numbered only later on. It appears that the suit came to be dismissed

for default. It may be noticed that the relief asked for in the suit above referred to is for a bare injunction. In support of the argument that the

pendency of the civil suit between the parties as referred to above would disable the Executive Magistrate from proceeding further since

proceedings which are parallel in nature cannot be allowed to go on, the learned counsel for the counter petitioner B party, cited the following

authorities: Ram Sumer Puri Mahant Vs. State of U.P. and Others, ; and K.S. Magdoom v. N.S. Jalal and another, 1988 L.W. (Crl) 89.

Opposing the submissions of the learned counsel for the counter petitioner B Party, the learned counsel for the petitioner A Party brought to my

notice the following authorities: Nagarathinam v. Sub Divl. Magistrate and Sub Collector, 1992 M.L.J. 498; Rajes, M.S.P. and another v.

Inspector of Police, Salem Steel Plant and three others, 1993 L.W. 97; Prakash Chand Sachdeva Vs. The State and another, .

I carefully went through the judgments referred to above. In the first case, the Honourable Supreme Court of India had an occasion to consider

the scope of initiating proceedings u/s 145 of the Code of Criminal Procedure when a suit for possession and injunction was before the Civil Court

in which, the question of title was gone into and judgment pronounced dismissing the said suit. The appeal against that judgment was pending. Only

in that context, the Apex Court stated as follows:-

When a civil litigation is pending for the property wherein the question of possession is involved and has been adjudicated, we see hardly any

justification for initiating a parallel criminal proceeding u/s 145 of the Code. There is no scope to doubt or dispute the position that the decree of

the Civil Court is, binding on the criminal court in a matter like the one before us. Counsel for respondents 2-5 was not in a position to challenge

the proposition that parallel proceedings should not be permitted to continue and in the event of a decree of the Civil Court, the Criminal Court

should not be allowed to invoke its jurisdiction particularly when possession is being examined by the civil court and parties are in a position to

approach the Civil Court for interim orders such as injunction or appointment of receiver for adequate protection of the property during pendency

of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be wasted over meaningless litigation.

We are, therefore, satisfied that parallel proceedings should not continue and the order of the learned Magistrate should be quashed.

It may be noticed that the nature of the suit which the Honourable Supreme Court of India had an occasion to consider while the above referred to

judgment was pronounced was one for possession and injunction in which the title was gone into and judgment was delivered on merits. This

judgment of the Honourable Supreme Court of India was later referred to and distinguished by the Apex Court in another reported judgment viz..

Prakash Chand Sachdeva Vs. The State and another, wherein it has been held as follows:

True, a suit or remedy in civil court for possession or injunction normally prevents a person from invoking jurisdiction of the criminal Court as

observed by this court in Ram Sumer Puri Mahant Vs. State of U.P. and Others, . particularly when possession is being examined by the civil court

and patties are in a position to approach the civil court for interim orders such as injunction or appointment of receiver for adequate protection of

the property during pendency of the dispute. Multiplicity of litigation is not in the interest of the parties nor should public time be allowed to be

wasted over meaningless litigation. The normal rule is as stated by the court in Puri''s case. But that was a suit based on title. And that could be

decided by civil court only. That ratio cannot apply where there is no dispute about title. When claim or title is not in dispute and the parties on

their own showing are co-owners and there is no partition one cannot be permitted to act forcibly and unlawfully and ask the other to act in

accordance with law. Where the dispute is not on the right to possession but on the question of possession the Magistrate is empowered to take

cognizance u/s 145, Crl.P.C. ...................................

There being no dispute of title between the appellant and respondent the only claim to be decided was if the appellant had been forcibly or wrongly

dispossessed within two months next before the date on which the information was received by the Magistrate and the High Court instead of

deciding this crucial aspect, failed to exercise its jurisdiction as the appellant had sought the remedy in civil suit without applying the mind if that

decision was in any way helpful for dropping the proceedings. In law, therefore, the order passed by two courts below cannot be maintained.

In Nagarathinam v. Sub Divisional Magistrate and Sub Collector, 1992 M.L.J.498, a learned single judge of this court had held, following the

judgment of another learned single Judge of this court reported in N.A. Ansary v. V. Jackiriya, 1990 L.W. 93 which in turn considered Ram

Sumer Puri Mahant Vs. State of U.P. and Others, , held as follows:

Unless there is order of decree binding upon the parties, mere filing of a civil suit at an earlier point of time, cannot act as a cover up for all acts

done by the plaintiff with regard to the suit property at any subsequent point of time though his action gives rise to circumstances warranting

initiation of proceedings u/s 145, Crl.P.C. In the instant case, the Civil Court has not decided the matter of possession. One party had approached

the Civil Court by filing suit for permanent injunction and it is pending. It did not gel terminated at all in a decree in favour of one party. In such

circumstances the proceedings u/s 145, Crl.P.C., is not barred and an order can be passed in such a proceedings.

The same learned Judges who decided the last mentioned case had again decided, following his earlier judgment reported in Rajes, M.S.P. and

another v. Inspector of Polite, Salem Steel Plant, and 3 others, 1993 L.W. 397 that unless there is an order or decree binding upon the parties,

mere filing of a civil suit at an earlier point of time cannot be a bar to proceedings u/s 145 of the Code of Criminal Procedure. In the case on hand,

the counter-petitioner B party had filed only a suit for permanent injunction and that suit also was dismissed for default. There was no ""lis"" pending

before the civil forum which could have disabled the Executive Magistrate from proceeding further with the proceedings initiated before him u/s

145 of the Code of Criminal Procedure. Though the judgment reported in K.S. Magdoom v. N.S. Jalal and another, 1988 L.W.89 is in favour of

the counter-petitioner B Party and this judgment follows Ram Sumer Puri Mahant Vs. State of U.P. and Others, , in view of the three judgments

referred to above, I have to decide that the filing of the civil suit in the case on hand, the nature of which and the outer passed thereon as already

referred to by me, would not be a bar to continue the proceedings initiated u/s 145 of the Code of Criminal Procedure to it''s logical end.

Under these circumstances, I am of the opinion that the order of the Executive Magistrate though well founded on points A, B, C, E and F,

yet, it has to fail on point D framed in this case. Though the order of the learned District Judge in C.R.P.No.14 of 1993 did not take all the above

aspects referred to by me into account white the said revision was allowed in favour of the counter petitioner B Party, yet, I am inclined to sustain

that order of the Appellate Authority on Point D raised and decided in this case. Accordingly. this revision is dismissed.