MANGAL Vs. ACHHELAL

JUDGEMENT

(1.) ONE of us (Tare C. J.) has referred the following question to a larger Bench : Whether the time taken for calling for a polios report or other preliminary enquiry can be excluded while interpreting the second proviso to Section 145 (4) of the Code of Criminal Procedure.

(2.) THE reference arose on the following facts. The respondent filed a complaint on 7. 7. 1971 alleging that be was dispossessed from khasra Nics. 865, 866 and 871 situated in village Kakrahati, on 31-5. 1971 and this dispute was likely to result in a breach of the peace. Therefore, the respondent prayed for action under Section 145 (1) of the Code of Criminal Procedure being taken by the Sub-Divisional Magistrate. The Sub-Divisional Magistrate called for a police report which was however received on 9. 8. 1971. The Sub-Divisional Magistrate passed a preliminary Older under Sub-section (1) of Section 145 on 10. 8. 1971. Therefore the question arose whether under the second proviso to Sub-section (4) of Section 145 of the Code the respondent could be placed in possession of the fields. The learned Judges of the Courts below held that the respondent could be placed in possession although the relevant case law was not cited. It appears that the question was not contested in the Courts below from that point of view. But the question was specifically raised in the revision filed in this Court. In the view of the conflicting opinion expressed not only in decisions of different High Courts but also in Single Bench decisions of this Court the Single Bench referred the case to a larger Bench.

(3.) WHEN the case was argued before the Single Bench and an order of reference was made a Division Bench decision of this Court was not brought to the notice of the Single Bench. The Division Bench case is State of M. P. v. Badgaia, Cri R. No. 389 of 1971, D/-25. 6. 1973 : reported in Cri L J 1974 Madh Pra 1517. In that case the following question had been referred by a Single Judge to a larger Bench: Whether a Magistrate loses jurisdiction to pass a preliminary order and is precluded from continuing the proceedings under Section 145, code of criminal procedure after the lapse of two months of forcible dispossession from the land and could the Magistrate order restoration of the possession in such cases to the complainant. As regards the first part of the question the Division Bench presided over by Shiv Dayal J. and Raina J. in their separate opinions delivered on 25-6-1973 answered the above question as follows: The Magistrate does not lose jurisdiction to pass a preliminary order and is not precluded from continuing the proceedings under Section 145 of the code of Criminal Procedure after the lapse of two months of forcible dispossession from the land. Under the section, as it stands the Magistrate can order restoration of possession only where the complainant has been dispossessed within two months of the date of the preliminary order. This view expressed by the Division Bench in the said case is based on a series of decisions of the Nagpur Judicial Commissioner's Court, namely Nago v. Atmaram AIR 1926 Nag 371 : 27 Cri L J 68, Emperor v. Parashram (1930) 26 Nag L J : 377 : 32 Cri L J 476 and Emperor v. Sunder Lal ILR (1937) Nag 174 : AIR 1936 Nag 271. However we may further observe that the said view has been taken by different High Courts. The Madras High Court took this view in Arunachal Gounder v. Chinnadorai. AIR 1945 Mad 216 : 46 Cri L J 767 and Athiappa Gounde v. Section A. Athiapps wherein the earlier view of the Division Bench of the Madras High Court in Narayana v. Kesappa was overruled. A Single Bench of the Orissa High Court in Jenama v. Draupadi AIR 1952 Cri 26 : 1952 Cri L J 148 presided over by Bay C, J. also took the same view which was later on affirmed by a Division Bench of the same High Court in Gangadhar Singh v. Shyam Sunder Singh AIR 1958 Cri 153 : 1958 Cri L J 919 subject to the qualification that under certain circumstances the principle of acts curiae neminem gravabit' would be attracted. A Full Bench of the Allahaibad High Court took a similar view in Ganga Bux Singh v. Sukihdin. A Full Bench of the Andhra Pradesh High Court took the same view in K. Yenkati Bamiata v. Sitiharamiah.