MOHD SABIR Vs. ABDUL RASHEED

JUDGEMENT

(1.) ABDUL Rasheed filled an application on 8th August, 1977 against Mohd. Sabir and Smt. Ghafooran for starting proceedings under section 145 CrPC. In this application he alleged that he was in possession of a house situate in village Jam Sawant, police station Baheri, District Bareilly but the opp. party had forcefully and wrongly dispossessed him on 14th July, 1977. He further alleged that there was an apprehension of! breach of peace with regard to the possession of the house and hence prayed for initiation of proceedings under section 145 CrPC. The Magistrate ordered the police to submit a report but no such report was received. Again on 27th September, 1977 ABDUL Rasheed prayed that a reminder be issued to the police for' sending its report. But yet no report was received inspite of the reminder. Then on 11th October, 1977 ABDUL Rasheed filed another application before the Magistrate for calling a report from the Tehsildar. The court ordered likewise, and thereafter the Tehsildar submitted his report on 24-1-1978. The Magistrate then passed the preliminary order under section 145 (1) CrPC on 13th March, 1978. This order indicated that the Magistrate was satisfied from the Tehsildar report dated 24-1-1978 that there was an apprehension of breach of peace between the parties on the question of possession of the house in dispute. He called upon the parties to file their written statements and proceeded with the inquiry.

(2.) AN objection was raised before: him that the proceedings under section 145 CrPC were not maintainable because the preliminary order was passed on 24-1-1978 whereas the applicant Abdul Rasheed had been dispossessed as far back as 14th July, 1977. Therefore, the Magistrate had no jurisdiction to restore possession of the property in dispute to Abdul Rasheed, who had been dispossessed thereform about 8 months prior to the passing of the preliminary order. This contention prevailed with the Sub-Divisional Magistrate Baheri, who passed an order on 11-2-1980 dropping the proceedings under section 145 (1) CrPC.

(3.) I have carefully scrutinised this argument, but to my mind it does not hold water. The jurisdiction of a Magistrate to proceed under section 145 (1), no doubt depends upon his satisfaction with regard to satisfaction of the apprehension of breach of peace. That is a foundation of his jurisdiction. He is, therefore, authorised to proceed with the inquiry and to pass a final order in accordance with section 145 (4) Cr. P. C. declaring one party or the other to be in possession of the subject matter in dispute on the date of the preliminary order. But this does not mean that the period of limitation of 2 months which has been fixed for undoing a wrong committed by one parry in forcefully and wrongfully dispossessing the other party, is dependent upon his satisfaction which is required for passing a preliminary order. The relevant portion of Section 145 (4) of the old Code of Criminal Procedure prior to its amendment ran as follows :- Inquiry as to possession- , "Magistrate shall then, without refarence to the merits of the claims of any of such parties to a right to possess the subject of dispute.........-decide the question whether any and which of the [parties was at the date of the order before mentioned in such possession of the said subject.......... Provided further that if it appear to the Magistrate that any party has within two months next before the date of such order has been forcibly and wrongfully dispossessed, he may treat the party so dispossessed as if he had been in possession at such date...... A reading of the aforesaid section indicates that under the Old Code, the Magistrate had jurisdiction to consider' a wrongfully dispossessed party to be in possession provided the dispossession took place two months prior to the passing of the preliminary order. It appears to me that the aforesaid provisions caused great hardship in several cases. Instances were not wanting when the passing of a preliminary order was delayed for some reason or the other with the result that the period of two mouths from the date of wrongful possession lapsed and the party wronged was without a remedy under the provisions of Section 145 CrPC. It was to obviate the difficulty and to find a solution to this problem on a more equitable arid just basis that Section 145 (4) of the Criminal Procedure Code was amended by the Code of Criminal Procedure 1973. The relevant portion of the amended Section 145 (4) is quoted below:-