# R. II. BHUTAl'lll v. MISS MANI J. DESAI & ORS

- **Citation:** [1969] 1 S.C.R. 80
- **Court:** Supreme Court of India
- **Decided:** 1968-04-23
- **Case number:** Criminal Appeal No. 17 of 1968
- **Bench:** S. M. S1Kri, J. M. Shelat, V. Bhargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-ii-bhutal-lll-v-miss-mani-j-desai-ors-4526
- **Pages:** 10

## Headnote

B
Code of Criminal Procedur, (Act 5 of 1898), s. 145-SatiS/actlbn.
of the MaRistratc u11der sub-s. (I )-Rcquiremenl for recording reasons
whrn satisfied- Calling far police report whether necessary b!/Ore re.
cordinR prelilninary order-Completion of dispossession before dare of
prt·litninary order H·herher means that tfirre is no existing dispute 1vithin the meanin11 of sub-s. (I).
The appellao: occupied an office cabin in Bombay on leave and
licence from respondent No. I. In an applicati-on under s. 145 of the
Code of Criminal Procedure the appellant alleged that on June 11. l 966
respondent No. 1 wron~fully took possession of the cabin
and j:!ave it
to respondents 2 and 3 who forcibly prevented his re.entry. He also
lodged a rcpQrt of ·!he incident with th,. police as a result of which
respondent No. I v.:a.c; arrested for an offence under s. J51 Indian Penal
Code hut was released on bail.
Respondent No I ftled a civil suit and
1ook out a notice of motion for restraining the appellant· from interf'ering
with the possession of ·!he cabin, but the sam~ was dismissed.
The
\iagistrate ·trying the application under s. 145 of the Code of Criminal
Procedure passed a preliminary order on June 20. 1966 recording his
satisfaction that a dispute existed.
After considering the affidavits and
the evidence led by the parties the Magistrate accepted the appellant's
ve"lion of faO'.s and on June 22.
1967 pas.•ed the
final order
under
sub-s. (6) directing restoration of pos;ession to the appellant till evicted
in due course of law.
l1lc High Court in revision set aside the order
of the Magistrate on the
following grounds: Ii) That dhe Magistrate
had not recorded his reason. for passing the preliminary order; {ii) that
the Magistrate had passed the said order without calling for a police
report. merely on the basis of the appellant's allegations: (iiil That the
dispossession of ':he appellant was completed and a report of assault was
lodged by the appellant with the police before the preliminary order
was passed, and therefore there was no longer any dispute on the day
of the order Jikel y to lead to a breach of the peace.
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HELD : (i) The satisfaction under sub-s. (l) of s. 145 is .:hat of the
"'.\fagistratc.
The question whether on the materials before him he should
initiate proceedings or not is. therefore. in his discretion which, no doubt.
has to he e.xcrcised in accordance v.i4.h the well rccoR!liscrl n1les in that
behalf.
The High Court in the exercise of its revisional
furi.cidiction
\J.'ould not RO into the question of
suffici~ncy of material
which
had
G
"tisfied the Magistrote. [86A-Bl
Jn the present case- the Magistrate had expressed hi' satisfaction on
the basis of the facts set out in the application before. him afrer he had
examined the appellant on oath. That
means that
.~hose fact~ were
prin1a farie ~ufficicnt and were the reasons leadinl:! to
hi~
~atisfaction.
[86C-Dl
(ii) The jurisdiction under s. 145 hcing of an emr.rgcncy nature. the
:\fagistrate mu"r ad ,,:ith caution hut that docs not mean th:tt where on
an ;lpplication hy one ot .the parties. to the dispute he .h:. ~atisfied that. 1he
requirement~ of rhe <:cct1on are ci:1stcnf. he cannot 1n111ate proceed1n.'tS
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R.H. BHUTAN! v. M. J. DESAI (Shelat, J.)
81
without a police report. The other vjew limits the discretion of the
Magistrate and renders the words 'other information' in s. 145(1) either
superfluous or qualifies them to mean other information
verified by the
police. [S7J>-E]
Phutania v. Emperor, ( 1924) 25 Cr. L.J. 1109, Ganesh v.
Venkntaswara (1964) 2 Cr. L.J. 100 and Raja of Karventnagar v. Sawcar Lodd
Govind Doss, (1906) I.LR. 29 Mad. 561, disapproved
(iii) The High Court erred in holding that merely because dispossession of the appellant was completed before June 20, 1966, there was no
dispute existing on. that day which was likely· do lead to breach of peace
or that the Magistrate was, therefore, prevented from passing the preli

## Text

R. II. BHUTAl'lll
A
v.
MISS MANI J. DESAI & ORS.
April 23, 1968
[S. M. S1KRI, J. M. SHELAT AND V. BHARGAVA, JJ.)
B
Code of Criminal Procedur, (Act 5 of 1898), s. 145-SatiS/actlbn.
of the MaRistratc u11der sub-s. (I )-Rcquiremenl for recording reasons
whrn satisfied- Calling far police report whether necessary b!/Ore re.
cordinR prelilninary order-Completion of dispossession before dare of
prt·litninary order H·herher means that tfirre is no existing dispute 1vithin the meanin11 of sub-s. (I).
The appellao: occupied an office cabin in Bombay on leave and
licence from respondent No. I. In an applicati-on under s. 145 of the
Code of Criminal Procedure the appellant alleged that on June 11. l 966
respondent No. 1 wron~fully took possession of the cabin
and j:!ave it
to respondents 2 and 3 who forcibly prevented his re.entry. He also
lodged a rcpQrt of ·!he incident with th,. police as a result of which
respondent No. I v.:a.c; arrested for an offence under s. J51 Indian Penal
Code hut was released on bail.
Respondent No I ftled a civil suit and
1ook out a notice of motion for restraining the appellant· from interf'ering
with the possession of ·!he cabin, but the sam~ was dismissed.
The
\iagistrate ·trying the application under s. 145 of the Code of Criminal
Procedure passed a preliminary order on June 20. 1966 recording his
satisfaction that a dispute existed.
After considering the affidavits and
the evidence led by the parties the Magistrate accepted the appellant's
ve"lion of faO'.s and on June 22.
1967 pas.•ed the
final order
under
sub-s. (6) directing restoration of pos;ession to the appellant till evicted
in due course of law.
l1lc High Court in revision set aside the order
of the Magistrate on the
following grounds: Ii) That dhe Magistrate
had not recorded his reason. for passing the preliminary order; {ii) that
the Magistrate had passed the said order without calling for a police
report. merely on the basis of the appellant's allegations: (iiil That the
dispossession of ':he appellant was completed and a report of assault was
lodged by the appellant with the police before the preliminary order
was passed, and therefore there was no longer any dispute on the day
of the order Jikel y to lead to a breach of the peace.
c
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HELD : (i) The satisfaction under sub-s. (l) of s. 145 is .:hat of the
"'.\fagistratc.
The question whether on the materials before him he should
initiate proceedings or not is. therefore. in his discretion which, no doubt.
has to he e.xcrcised in accordance v.i4.h the well rccoR!liscrl n1les in that
behalf.
The High Court in the exercise of its revisional
furi.cidiction
\J.'ould not RO into the question of
suffici~ncy of material
which
had
G
"tisfied the Magistrote. [86A-Bl
Jn the present case- the Magistrate had expressed hi' satisfaction on
the basis of the facts set out in the application before. him afrer he had
examined the appellant on oath. That
means that
.~hose fact~ were
prin1a farie ~ufficicnt and were the reasons leadinl:! to
hi~
~atisfaction.
[86C-Dl
(ii) The jurisdiction under s. 145 hcing of an emr.rgcncy nature. the
:\fagistrate mu"r ad ,,:ith caution hut that docs not mean th:tt where on
an ;lpplication hy one ot .the parties. to the dispute he .h:. ~atisfied that. 1he
requirement~ of rhe <:cct1on are ci:1stcnf. he cannot 1n111ate proceed1n.'tS
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R.H. BHUTAN! v. M. J. DESAI (Shelat, J.)
81
without a police report. The other vjew limits the discretion of the
Magistrate and renders the words 'other information' in s. 145(1) either
superfluous or qualifies them to mean other information
verified by the
police. [S7J>-E]
Phutania v. Emperor, ( 1924) 25 Cr. L.J. 1109, Ganesh v.
Venkntaswara (1964) 2 Cr. L.J. 100 and Raja of Karventnagar v. Sawcar Lodd
Govind Doss, (1906) I.LR. 29 Mad. 561, disapproved
(iii) The High Court erred in holding that merely because dispossession of the appellant was completed before June 20, 1966, there was no
dispute existing on. that day which was likely· do lead to breach of peace
or that the Magistrate was, therefore, prevented from passing the preliminary order and proceeding thence to continue the
enquiry
and
pa~s
his final order. This reasoning would mean that if a party takes the Jaw
into his hands and deprives forcibly and wrongfully the other party of
his possession and wrongfully completes his act of dispossession,
ilie
party so dispossessed cannot have the benefit of s. 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 ~o cause a breach of the peace. Such a view does not take into
consideration the seeond proviso to
sub-s. ( 4) which was introduced
precisely to meet such cases. [S7F-H; SSA]
The word 'dispossessed' in the second. proviso means to be out of
possession, removed from the premises,
ousted, ejected or
eoccluded.
Even where a person has a right to possession but taking the law into
his hands makes a forcible entry otherwise than in due course of law,
it woulcl be a case of both forcible and wrongful dispossession. [SS DE]
Reading s. 145 as a whole it is clear that even though respondent 1
had taken over possession of the· cabin, since that incident took place
within the prescribed period of two months next before ~he 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 1tbe final
order as he did. [S9 DJ
E<fwick v. llawkes. 1S Ch.D. 199. Jiha· v. Chandulal,
A.I.R.
1926
Born. 91. A. N. Shah v. Na11e<wara Rao. A.LR. 1947 Mad.
133 and
Suharna Sunami v. Kartika Kuda/, (1954) I.L.R. Cuttk. 215, applied.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
17 of 1968.
Appeal by special leave from the judgment and order dateJ
August 17, 1967 of the Bombay High Court in Criminal Revision
Application No. 668 of 1967.
S. Bhutani and Urmila Kapur, for the appellant.
B. R. L. I.vengar and P. C. Bhartari, for the respondents.
The Judgment of the Court .was delivered by
Shelat, J. At all material times respondent J had her office
premises in Nawab Building, Fort, Bombay, which consisted of
two cabins. On July 10, 1964, she entered into an agreement with
the appellant pennitting him to occupy orfe of the cabins on leave
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SL'PR!:ME COURT REPORTS
J 1969] I S.CR.
Jnd licence for a period of eleven months. On June 9, I 965, the
agreement was extended for a
period of eleven monltlS.
The
appellant's case was that it wa.s further extended for another eleven
months as from May IO, I 966 and respondent l accordingly accepted Rs. 450 as compensation for May I 966.
Respondent l
thereafter demanded higher compensation which he refused to pay
and thereupon respondent I refused tu execute the renewal and
threatened to eject him forcibly if he did not vacate.
His case
further was that in the morning of June 11, 1966 respondent I
broke open the s:aple of the cabin, removed the door from
its
hinges, removed all his belongings lying in the cabin and dumped
them in the passage outside.
She then handed over posses.sion of
the cabin to respondents 2 and 3 purporting to do so under an
agreement of licence dated June l, I 966.
When he went to the
cabin he found the cabin occupied by respondents 2 and 3.
On
his asking them tu place back his belongings and to restore possession to him, the respondents threatened him with dire consequences.
He, therefore, went to the police station but the police
refused to take action and only recorded his N.C. complaint. From
the police station he and his friend. Mahomed Salim returned to
the cabin when. on their demanding possession of the cabin, the
rc.spondents atiacked them.
In the course of that attack, the said
Salim received injuries.
He and the said Salim once again went
to the police sta·ion but the police again refused to take action
and recorded another N.C. complaint and sent Salim to the hospital for exan1ination.
Due to the persistent refusal by the police
to help him to get back the cabin, the appellant approached higher
authorities in consequence of which the police at last recorded a
case of a'sauit against respondent I.
They then arrested respondent I but released her on bail:
Rc.,pondent I, however,
kept
some persons near the cabin to prevent the appellant from recovering possession.
There wa.s, therefore, every likelihood of a breach
of the peace had he !!One to the cabin to regain possession. In
thc.sc circumstances he filed an application before the Additional
Chief Prc.sidency \fagi~trate under s. 145 of the Code of Criminal
I' roced u re.
The Magistrate then directed the parties to file affidavits and
·to adduce such further evidence as they dl!sircd. Accordingly, the
parties filed affidavits of various persons who had their offices in
the same building.
The appellant, besidc.s other affidavits, also
filed an affidavit of one Nathani, the Manager of his company al
whose instance. it was the case of respondent l, the appel!aAt had
agreed to hand over and actually· did hand over posses6ion of the
cabin in the morning of June I l. 1966. That affidavit, however.
did not support respondent l but. on the contrary, denied that
Nathani had agreed that the appellant could vacate or that the
appellant at his instanc~ had agreed to do so.
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R. H. BHUTAN! v. 'M, J. DESAI (She/at, J.)
83
ln her written statement, respondent l denied that the said
licence was renewed a second time in May 1966.
Her case was
that at the request of the appellant she had permitted him to continue in possession till May 1966 on his promising to vacate by the
end of that month, that on June 11, 1966, the appellant vacated
the cabin kept his belongings in the passage and thereupon she
permitted' respondents 2 and 3 to occupy it as, relying on the
appellant's promise that he would vacate by the end of May 1966,
she had already entered into an agreement of licence on June 1,
1966 with respondent 3.
She denied that any incident, as alleged
by the appellant, had occurred on that day or that the appellant
or the said Salim was assaulted by her or by respondent 2 or 3.
She, therefore, denied that any dispute existed on that day or that
there was any likelihood of a breach of the peace. Respondents
2 .and 3 also filed their written statements on the lines taken by respondent 1.
But after filing them, they did not participate any
more in the proceedings as they had since then vacated the said
cabin.
Possession, th.erefore, of the cabin since then remained
with respondent 1.
Respondent 1 in the meantime filed a suit in
the City Civil Court and took out a notice of motion for restraining the appellant from interfering with her possession of the cabin.
The Court dismissed the notice of motion refusing to· rely on the
said agreement.
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 womgfully 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 1 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 respondents 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 s. 145 ( 4), though he had been dispossessed on June 11, he
must be deemed to be in possession on June 20, 1966 when the
Magis•rate passed his preliminary order.
By his final order dated
June 22. J 967 passed under sub-s. ( 6), the Magistrate directed
restoration of possession to the appellant till he would be evicted
in due course of law and prohibited the respondents from interferring with his possession till then.
In the i:evision before the High Court~ the respondents raised
two contentions : ( 1) that the Magistrate, in entertaining the said
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SUPREME COURT REPORTS
i 1969] l S.C.R.
application and passing the said preliminary order, miscono~ivcd
~he. SC?pe of proceedings under s. 145, and (2) that he had no
1unsd1ct1on to pass the said preliminary order as in the events that
had happened there was no existing dispute likely to result in a
b~each of the peace.
The High Court accepted these contentions
and set aside the order of the Magistrate.
In doing so, it observed
that the object of s. 145 was to preserve peace al1d to provide a
spcc<ly remedy against a likely breach of peace where there is an
existing dispute regarding possession of an immovable property
until such dispute is adjudicated upon by a proper tribunal. That
se<:tion, therefore, can be invoked where these two conditions exi.st.
namely, an existing dispute and an apprehension of breach of
peace.
The Magistrate, therefore. had to be satisfied as to the
e.,isting of thcs.e two conditions when he passed the preliminary
order.
The High Court then observed that assumin1'
that
t,he
appellant was forcibly and wrongfully dispossessed imd the said
Salim was assaulted bv respondent I and her men. it could not evc;1
then necessarily mean that there was an existing dispute relatin~
to p<>ssession of the cabin which was likclv to cause breach of
peace on June 20, 1966 when the Magistrate passed his preliminary
order.
The- acts of respondent 1 mi?hc constitute an offence for
which the appellant had filed a complaint under s. 341 of the Penal
Code and the rolice had arrested respondent I and released her
on bail.
In the light of these facts the Magistrate ought to have
hdd that on that day there did not any longer ex.ist any dispute
regarding possession of the said cabin which was likely to lead
to a breach of the peace. · The High Court, further, observed that
the preliminary order did not also record the reasons
for the
Magistra'.e's satisfaction as to the two conditions and that all that
it siated was that on the facts stated in the said application. he was
satisfied that there was a dispute which was likely to cause breach
of the peace.
The High Court also observed that all that the application showed was that there was forcibly dispossession and an
at:empted assault; that from these two facts it was difficult to sec
how. without any further enquiry. the Magistrate could come to
the conclusion that there was likelihood of breach of peace unless
it was assumed that in everv case of a dispute over possession of
·an immoveable properly and forcibly dispossession there would he
· continuous possibility of breach of peace.
The High Court com·
plained that the Yfagistrate did not call for a police report and
simply relied on the bare allegations of an interested party.
On
this reasoning, i• held that the Magistrate had misconceived the
scope of proceedings under s. 145 and passed the preliminary order
as if it was a process issued bv him in a non-cognisahle case. The
Hiirh Court also noted that respondent I ha~ pla~ed respol)dent 3
in possession. that respondent 3 had remained 1n possession for
near!;· a vear bv the time the Magistra•c passed his final order, that
the final .order .would. therefore .. affect his vested rights. and that
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this fact coupled with the fact of the appellant's complaint under
s. 341 of the Penal Code on June 13, 1966 ought to have been
considered by the Magistrate before passing the final order. As
aforesaid, the High Court set aside the Magistrate's order whereupon the appellant obtained special leave and filed this appeaL
challenging the correctness of the High Court's order.
Before proceeding further, we may mention that respondents 2:
and 3 had vacated the premises long before the Magistrate passed
the final order.
There was, therefore, no question of the Magistrate having to consider the question of their having been in possession for about a year or their having any vested rights under the
agreement dated June 1, 1966. It may also be recalled that the·
City Civil Court had refused to rely on the said agreement and to•
pass an interim injunction restraining the appellant from disturb-·
ing the possession of respondent 1.
The object of s. 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 deter--
mined by a competent court.
The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute·
regarding an immoveable 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-s. ( 1) and thereafter to· make an enquiry under sub-s.
( 4) and pass a final order under sub-s. ( 6). It is not necess<1rY
that at .the time of passing the final order the apprehension of
breach of peace should continue or exist.
The enquiry under
s. 145 is limited to the question as to who was in actual possession
on the date of the preliminary order irrespective of the rights of
the parties.
Under the second proviso, the party who is found to
have been forcibly and wrongfully dispossessed within two months
next preceding the date of the preliminary order may for the purpose of the enquiry be deemed to have been in possession oi1 the·
date of that order. The opposite party may of course prcve that
dispossession took place more than two months next preceding the
date of that order and in that case the Magistrate would have to'
cancel his preliminary order.
On the other hand, if he is satisfied that dispossession was both forcible and wrongful and took
place within the prescribed period, the party dispossessed woukr
be deemed to be in actual possession on the date of the preliminary
order and the Magistrate would then proceed to make his final
order directing the dispossessor to restore possession and prohibit
him from interfering with that possession until the applicant is
evicted in due course of law. This is broMly the scheme of
s. 145.
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SUPREME COURT REPORTS
( 1969] I S.C.R.
The satisfaction under sub-s. ( 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,
Jrns to be exercised in accordance with the well recognised rules of
Jaw 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
:arriv.e at his satisfaction both from the police report or "from other
information" which must include an application by the party dispossessed. The High Court, in the exercise of its revisional juris-
.diction, would not go into the question of sufficiency of material
wliich has sa'.isfied the Magistrate.
The question is whether the preliminary order passed by the
_Magistrate was in breach of s. 145 (1), that is, in the absence of
either of the two conditions precedent.
One of the grounds on
which the High Court interfered was that the Magistrate failed to
record in his preliminary order the reasons for his satisfaction. The
section;. no doubt, requires him to record reasons. The Magistrate
bas ·expressed his satisfaction on the basis of the facts set out in
the application before him and after he had examined the appellant on oath.
That means that those facts were prima facie suffi-
·cient and were the reasons leading to his satisfaction.
The other reason which, act:ording to the High Court, vitiated
the order was that the Magistrate act-.-d orlly -on the flllegations in
the appellant's application without making any · further
enquiry
:and i§~ued the order as if he was issuing a process in a N.C. case.
But counsel for the respondents conceded· that before passing 'the
·orc;ler the Magist>ate had examined· the appellant on oatli and it
was then orlly that he made the order recording his ·satiSfaction.
But apart from the allegati"ons in the application as to his l'otcible
and wrongful dispossession and assauit, there was the fact that on
June 11, 19'66 the appellant had gone twite to the ·police· station,
requested the j>olie"e to take action and had lodged two N .C. com-
-plaints.
This rhatefial being before the Magistrate, it was hardly
fair to blame the Magistrate that he hild J}a5sed his preliminary
-order' lightly or without being satisfied as to the existence of the
two conditions required by the sub-section.
Was the High Court next justified in observing that the Magis-
·t~ate ought" to J:\ave got a police report on the allegations made in
tbe application l:iefory Ire passed his said order.? Such a view has
been taken in some decisions,. In Plwtania v. Emperor('.) the view
taken was that ft was a safe general rule for a Magistrate to refuse
to truce action odder s. l 45 except on a police report and that the
absence of such a report is almost conclusive indication of the·
absence of any. Jikelihobd .of breach of peace.
A similar opinion
'has also ~een. ,expr~ iri {Ja1tesh v. Venkalaswara(')
where,
(1) /1924) 25 Cr. L.J. 1109.
(2) (1964) 2 Cr .. L.J.100 .
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relying on Raja of Karvetnagar v. Sowcar Lodd Govind Doss('),
the Mysore High Court observed that law and order being the concern of. the police it is but natural that the Magistrate should either
be moved by the police or if moved by a private party, he should
call for a police report regarding the likelihood of breach of
peace.
But the High Court of Madras in the case of Raja of
Karvetnagar(' ), did not lay down any suc,1 proposition but merely
sounded a note of caution that in the absence of a police report
the statements of an interested party shou1d not be relied on without caution and without corroboration.
'1he proposition that the
Magistrate before proceeding under s. 1'15( l)
must, as a rule.
call for a police report where he is moved by a private party or
that the absence of a police report is a sure indication of the absence of possibility of breach of peace, is not warranted by the
clear language of the section which permits the Magistrate to initiate proceedings either on the po!Ice report or "on other infonnation".
The words "other infom1ation" are wide enough to in·
elude an application by a private party.
The jurisdiction under
s. l 45 being, no doubt, of an emergency nature, the. Magistrate
must act with caution but that does not mean that where on an
application by one qf the parties to the dispute he is satisfied that
the requirements of the section are existent, he
cannot initiate
proceedings without a police report. The view taken in the aforesaid two decisions unnecessarily and without any warrant from the
language of sub-s. ( 1) limits the discretion of the Magistrate and
renders the words "other information" either superfluous or qualifies them to mean other infonnation verified by the police.
In
our view, once the Magistrate, having examined the applicant on
oath, was satisfied that his application disclosed the existence of
the dispute and the likelihood of breach of peace, there was no
bar against his acting under s. 145(1).
The next ground for the High Court's interference was
that
assuming that the appellant was forcibly and wrongfully dispossessed and the said Sa!in1 was assaulted, the said dispossession was
completed, a complaint of assaul: 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 s. 145 (1) and was without jurisdiction. This reasoning would
mean that if a party takes the Jaw into his hands and deprives
forcibly and wrongfully the other party of his possession and completes his act of dispossession, the party so dispossessed cannot
have the ben~fit of s. 145, ~s by the time _he, files his application
and the Magistrate passes his order, the dispossession would be
complete and, therefore, there would be n<! existing dispute likely
0) ll906) I.LR. 29 Ma4. 561.
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St:PREME COURT REPORTS
(1969] I SCR
to cause breach of peace.
Such a construction of s. 145, in our
view, is not correct, for it does not take into consideration the
second proviso to sub-s. ( 4) which was introduced precisely to
meet such cases. The Magistrate has first to decide who is in
actual possession at the date of his preliminary order.
If, however, the party in de /aero possession is found to have obtained
possession by forcibly and wrongfully dispossession 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 per.;on
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 Jaw.
So that it is not possible to say that such
an act of dispossession was complete4 before the date of the order.
To say otherwise would mean that if a party who i• 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 s. 145.
The word '"dispossessed" in the second proviso means to be
out of possession, removed from the premises, ousted, ejected or
excluded. Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than
in due course of Jaw, it would be a case of both forcible and wrongful dispossession : (cf Edwick v. Hawkes(') and Jiba v. Cl1a11dulal) ('). Sub-section (6) of s. 145 in such a case permits the
Magistrate to direct restoration of possession with the legal effect
that is valid until eviction in due course of law. In Jiba
v.
Chandulal('l the High Court of Bombay held that it would be unfair to allow the other party the advantages of bis forcible and
wrongful possession and the fact that time has elapsed since such
dispossession and that the dhpossessor has since then been
in
possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for
the Magistrate to refuse to pass an order for restoration of possession once be is satisfic<l that the dispossessed party was in actual
or demand possession under the second proviso.
Similarly, in
A. N. Shafi v_ NaKeswar Ra<>(') it was held that merely
because there has been no further violence after one of the parties
bad \\TOD;,>fully and forcibly dispossessed the other it cannot be
said that there cannot be breach of peaCI! and that, therefore. proceedings under s. 145 should be dropped. It may he that a party
may not take the law in his
nands in reply to the other party
forcibly and wrongfully dispossessing him.
Thar does not mean
that he is 1101 to have the benefit of the remedy under s. 145. The
(!) I 8 Ch. D. I 99.
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A.LR .1•)47 ~-l:.id. 13~ .
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R. H. BHUTAN! v. M. J. DESAI (She/aj, J.)
89
second proviso to sub-s. ( 4) and sub-s. ( 6) contemplate not a
fugitive act of trespass or interference with the possession of the
applicant, the dispossession there referred to is one that amounts
to a completed act of forcible and wrongful driving out a party
from his possession : (cf Subarna Sunami v. Kartika Kudal) (1).
It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal
complaint and the police had taken action thereunder do not mean
that the Magistrate could not proceed under s. 145" and give direction pennissible under sub-s. (6).
·
In our view, the High Court erred in holding that merely because dispossession of the appellant was completed 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 s. 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 pre!imnary 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.
We, therefore, allow the appeal, set side the High Court's
order and restore that of the Trial Magistrate.
G.C.
(I) 0954)1.L.R. Cuttak 215.
LIO Sup. C.L/68-7
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Appeal allowed.
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