CHELLAMMA Vs. RAMAN PILLAI

JUDGEMENT

(1.) The petitioner gave a complaint at the police station at Paravoor on 17th October 1961, complaining that the respondents obstructed a pathway on 15th October 1961. The Sub Inspector visited the place and prepared a mahazar: but, since no action was taken, the petitioner and others filed another petition before the Executive First Class Magistrate, Quilon on 12th January 1962 for taking action under S.147 of the Code of Criminal Procedure. The petition was sent to the police at Paravoor for enquiry and report; but, no further action was taken on this petition either. Consequently, the petitioners moved the Superintendent of Police, Quilon on 4th May 1962 by another petition, which was again sent to the police station at Paravoor. The Sub Inspector of Police then prepared a mahazar and sent a report to the Executive First Class Magistrate, whereupon proceedings under S.147 were started by the Magistrate. The Magistrate ultimately dismissed the petition holding that, since the petitioners did not establish that they exercised a right of passage within three months prior to the institution of the enquiry, they were not entitled to any order in their favour. The petitioners then filed a petition before the Sessions Judge, Quilon for revising that order; and he has come to a contrary conclusion and has made the reference.

(2.) The order of the Magistrate has obviously been passed under a mistake of the facts of the case. He has not seen the petition filed before court on 12th January 1962; and, in his opinion, the story of such a petition is one concocted by the petitioners to cover up the delay in filing the complaint. In fact, the petition was filed; and that is not seriously disputed before me. That petition was evidently within three months of the obstruction caused by the respondents.

(3.) Nevertheless, it is urged by the respondents, on the strength of the decision of this Court in John v. Joseph ( 1961 KLT 515 ) by Govinda Menon, J., that the relevant date for calculating the period of time is the date on which the magistrate draws up the proceedings and not on the filing of the petition. The decision cited arose under S.145 of the Criminal Procedure Code. Under sub-s.4 of that section, the relevant question is as to who is in possession on the date of the preliminary order. The second proviso to the sub-section then provides that if it appears to the magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date. It is evident that under this section the stress is on the date of the preliminary order, and that date must therefore be the material date.