ROSHANLAL Vs. STATE

JUDGEMENT

(1.) THIS Criminal Revision No. 64 of 1974 is brought from the order of the Sub-Divisional Magistrate, Mandi in a case under Section 145, Criminal P. C, whereby Gurbachan Singh has been declared entitled to possession of the stall situate in Khasra No. 1281 until evicted therefrom in due course of law. The proceeding was initiated at the instance of Gurbachan Singh who made a petition to the Superintendent of Police saying that he was in possession over the disputed stall and was forcibly and wrongfully dispossessed by Roshan Lai and Shrimati Kaushalya a week prior to his filing of the petition which he did on 21-3-1974. Tracing the history of the stall the petitioner stated that formerly his servant Kherati Lai was in occupation, who died in 1966. Thereafter Kali Dass another servant of his started occupation of the stall on his behalf. The respondents Roshan Lai and Shrimati Kaushalya are the descendants of Kherati Lai and they wrongfully occupied the stall for which Gurbachan Singh felt aggrieved and filed the complaint before the Magistrate. It was alleged that the dispute was likely to cause breach of peace and hence action was solicited under Section 145 of the Criminal P. C. The Magistrate upon the information received was satisfied that the dispute was ikely to cause breach of peace and accordingly he drew up the preliminary order on 4-7-1974. He called upon the respective parties to put in written statements as respects their actual possession on the subject of dispute. After considering the written statements submitted by respective parties, th Magistrate found that there was apprenen. sion of breach of peace and that Gurbachan Singh was entitled to possession until evicted therefrom in due course of law. He made an order accordingly, and against that order Roshan Lai and Shrimati Kaushalya have filed the present revision.

(2.) CRIMINAL Miscellaneous Petition No. 33 of 1975 is a petition arising out of this revision. It is contended by Gurbachan Singh that he was not made a party to the main revision petition and that he was primarily concerned with the dispute. Accordingly he prayed for his being made a party to the petition. He supported the artier of the learned Magistrate whith is obviously in his favour. As the main Criminal Revision as well as the Criminal Miscellaneous Petition arise out of the same dispute and a common question of law and fact arises, the two can conveniently be disposed of by this single order.

(3.) THE scheme of Section 145 is very well settled. It is one of the preventive sections. The avowed object is to prevent breach of peace in a case where rights of the parties are not settled in a civil court. The necessary condition under this section, which confers jurisdiction on a Magistrate to make an enquiry is, that he should be satisfied from a police report or other information that a dispute likely to cause a breach of peace exists concerning land or water, and his jurisdiction to make an enquiry is confined only to the fact of actual possession of the subject of dispute. He has no jurisdiction to adjudicate upon the rights of the parties to possession, for such questions are within the exclusive jurisdiction of the civil courts. Under Sub-section (1) of Section 145 as a result of satisfaction of the Magistrate upon police report or other information received that a dispute likely to cause a breach of the peace exists concerning any land, he makes an order in writing stating the grounds of his being so satisfied and requiring the parties to attend his court on a specified date and time and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute. The order is popularly known as preliminary order under Sub-section (1) of Section 145. It is evident, therefore, that his enquiry is primarily directed as to the fact of actual possession of the subject of dispute. Cases are not infrequent when a party has forcibly or wrongfully dispossessed the other party shortly before the passing of the preliminary order. For that a legal fiction is introduced in the proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure, 1973, which is to the effect that a party 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), may be treated as the poetry in actual possession on the date of his order under Subsection (1 ). This legal fiction regarding possession as introduced by the proviso to Sub-section (4) is slightly different than the legal presumption as to possession provided for in second proviso to subsection (4) of Section 145 of the Code of Criminal Procedure, 1898. In the previous provision the period of two months was next before the date of the preliminary order and was not to be next before the date on which the re- port of the police officer or other information was received by the Magistrate. This has done away with the difficulty experienced by the courts when any party was dispossessed within two months next before the date on which the report was made to the Magistrate or information received by him and for no fault of the complainant the preliminary order is postponed and passed by the Magistrate so that the period of two months is over, and on the date of the preliminary order, in that contingency, the dispossession occurs more than two months next before that date. The result was that advantage as to legal fiction could not be derived by a party and that was a flaw in the statute. Accordingly in the proviso to Sub-section (4) of Section 145 of the Code of Criminal Procedure, 1973 this difficulty has been obviated. Now in order to have the legal fiction as regards possession, the period of two months has to be accounted for next before the date the police report is received by the Magistrate or the information is received by him as a result to some complaint made to him. The period of dispossession, in order to raise legal fiction, therefore starts two months next before the date of the police report or the complaint made to the Magistrate and ends upto the date of the passing of the preliminary order.