iminal Appeal No 17 of 1968
Appeal by special leave from the judgment and order dated August 17 1967 of the Bombay High Court in Criminal Revision Application No 668 of 1967
section Bhutani and Urmila Kapur for the appellant
B R L Iyengar and P C Bhartari for the respondents
The Judgment of the Court was delivered by Shelat J
At all material times respondent I 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 permitting him to occupy one of the cabins on leave 82 and licence for a period of eleven months
On June 9 1965 the agreement was extended for a period of eleven months
The appellant s case was that it was further extended for another eleven months as from May 10 1966 and respondent 1 accordingly accepted Rs 450 as compensation for May 1966
Respondent I thereafter demanded higher compensation which he refused to pay and thereupon respondent 1 refused to 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 1 broke open the staple 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 possession of the cabin to respondents 2 and 3 purporting to do so under an agreement of licence dated June 1 1966
When he went to the cabin he found the cabin occupied by respondents 2 and 3
On his asking them to 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 NC complaint
From the police station he and his friend Mahomed Salim returned to the cabin when on their demanding possession of the cabin the respondents attacked them
In the course of that attack the said Salim received injuries
He and the said Salim once again went to the police station but the police again refused to take action and recorded another NC complaint and sent Salim to the hospital for examination
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 assault against respondent 1
They then arrested respondent 1 but released her on bail
Respondent 1 however kept some persons near the cabin to prevent the appellant from recovering possession
There was therefore every likelihood of a breach of the peace had he gone to the cabin to regain possession
In these circumstances he filed an application before the Additional Chief Presidency Magistrate under section 145 of the Code of Criminal Procedure
The Magistrate then directed the parties to file affidavits and to adduce such further evidence as they desired
Accordingly the parties filed affidavits of various persons who had their offices in the same building
The appellant besides other affidavits also filed an affidavit of one Nathani the Manager of his company at whose instance it was the case of respondent 1 the appellant had agreed to hand over and actually did hand over possession of the cabin in the morning of June 11 1966
That affidavit however did not support respondent 1 but on the contrary denied that Nathani had agreed that the appellant could vacate or that the appellant at his instance had agreed to do so 83 In her written
statement respondent I 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 therefore 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 worngfully 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 section 145 4 though he had been dispossessed on June 1 1 he must be deemed to be in possession on June 20 1966 when the Magistrate passed his preliminary order
By his final order dated  June 22 1967 passed under sub section
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 revision before the High Court the respondents raised two contentions  1 that the Magistrate in entertaining the said 84 application and passing the said preliminary order
misconceived the scope of proceedings under section 145 and 2 that he had no jurisdiction to pass the said preliminary order as in the events that had happened there was no existing dispute likely to result in a breach 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 section 145 was to preserve peace and to provide a speedy 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 section therefore can be invoked where these two conditions exist namely an existing dispute and an apprehension of breach of peace
The Magistrate therefore had to be satisfied as to the existing of these two conditions when he passed the preliminary order
The High Court then observed that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted by respondent 1 and her men it could not even then necessarily mean that there was an existing dispute relating to possession of the cabin which was likely to cause breach of peace on June 20 1966 when the Magistrate passed his preliminary order
The acts of respondent I might constitute an offence for which the appellant had filed a complaint under section 341 of the Penal Code and the police had arrested respondent 1 and released her on bail In the light of these facts the Magistrate ought to have held that on that day there did not any longer exist 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 Magistrate s satisfaction as to the two conditions and that all that it stated 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 attempted assault that from these two facts it was difficult to see bow 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 every case of a dispute over possession of an immoveable property and forcibly dispossession there would be continuous possibility of breach of peace
The High Court complained that the Magistrate did not call for a police report and simply relied on the bare allegations of an interested party
On this reasoning it held that the Magistrate had misconceived the scope of proceedings under section 145 and passed the preliminary order as if it was a process issued by him in a non cognisable case
The High Court also noted that respondent I had placed respondent 3 in possession that respondent 3 had remained in possession for nearly a year by the time the Magistrate passed his final order that the final order would therefore affect his vested rights and that 85 this fact coupled with the fact of the appellants complaint under section 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 disturbing the possession of respondent 1
The object of section 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 determined 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 section
1 and thereafter to make an enquiry under sub section
4 and pass a final order under sub section
It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist
The enquiry under section 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 on the date of that order
The opposite party may of course prove 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 would 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 broadly the scheme of 145
86 The satisfaction under sub section
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 has to be exercised in accordance with the well recognised rules of law 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 arrive 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 jurisdiction would not go into the question of sufficiency of material which has satisfied the Magistrate
The question is whether the preliminary order passed by the Magistrate was in breach of section 1451 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 has 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 sufficient and were the reasons leading to his satisfaction
The other reason which according to the High Court vitiated the order was that the Magistrate acted only on the allegations in the appellant s application without making any further enquiry and issued the order as if he was issuing a process in a NC case
But counsel for the respondents conceded that before passing the order the Magistrate had examined the appellant on oath and it was then only that he made the order recording his satisfaction
But apart from the allegations in the application as to his forcible and wrongful dispossession and assault there was the fact that on 
June 11 1966 the appellant had gone twice to the police station requested the police to take action and had lodged two NC complaints
This material being before the Magistrate it was hardly fair to blame the Magistrate that he had passed 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 Magistrate ought to have got a police report on the allegations made in the application before he passed his said order  Such a view has been taken in some decisions
In Phutania vs Emperor1 the view taken was that it was a safe general rule for a Magistrate to refuse to take action under section 145 except on a police report and that the absence of such
a report is almost conclusive indication of the absence of any likelihood of breach of peace
A similar opinion has also been expressed in Ganesh vs Venkataswara2 where 1 1924 25 Cr
LJ1109
2 87 relying on Raja of Karvetnagar V Sowcar Lodd Govind Doss1 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 Karvetnagar1 did not lay down any such proposition but merely sounded a note of caution that in the absence of a police report the statements of an interested party should not be relied on without caution and without corroboration  the proposition that the Magistrate before proceeding under section 145 1 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 police report or on other information
The words other information are wide enough to include an application by a private party
The jurisdiction under section 145 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 of 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 section
1 limits the discretion of the Magistrate and renders the words other information either superfluous or qualifies them to mean other information 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 section 1451
The next ground for the High Court s interference was that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted the said dispossession was completed a complaint of assault 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 section 1451 and was without jurisdiction
This reasoning would mean that if a party takes the law 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 benefit of section 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 1 1906 ILR 29 Mad561 88 to cause breach of peace
Such a construction of section 145 in our view is not correct for it does not take into consideration the second proviso to sub section
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 facto 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 person 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 law
So that it is not possible to say that such an act of dispossession was completed before the date of the order
To say otherwise would mean that if a party who is forcibly and wrongfully dispossessed does not in retaliation take the law into his hands be should be at disadvantage and cannot have the benefit of section 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 law it would be a case of both forcible and wrongful dispossession  of Edwick vs Hawkes1 and jiba vs Chandulal 2
Sub section 6 of section 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 vs Chandulal 2 the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor 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 he is satisfied that the dispossessed party was in actual or demand possession under the second proviso
Similarly in A N Shah vs Nageswar Rao it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that therefore proceedings under section 145 should be dropped
It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him
That does not mean that he is not to have the benefit of the remedy under section 145 The 1 2 AIR 1926 Bom
3 AIR1947 Mad 133 89 second proviso to sub section 4  and sub section 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 of Subarna Sunami vs 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 section 145 and give direction permissible under sub section
In our view the High Court erred in holding that merely be cause 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 section 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 preliminary 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
GC Appeal allowed
1 1954 ILRCuttak 215


Summary:
The appellant occupied an office cabin in Bombay on leave and licence from respondent No 1
In an application under section 145 of the Code of Criminal Procedure the appellant alleged that on June 11 1966 respondent No 1 wrongfully took possession of the cabin and gave in to respondents 2 and 3 who forcibly presented his re entry
He also lodged a report of the incident with the police as a result of which respondent No 1 was arrested for an offence under section 351 Indian Penal Code but was released on bail
Respondent No1 filed a civil suit and took out a notice of motion for restraining the appellant from interfering with the possession of the cabin but the same was dismissed
The Magistrate trying the application under section 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 version of facts and on June 22 1967 passed the final order under sub section 6 directing restoration of possession to the appellant tin evicted in due course of law
The High Court in revision set aside the order of the Magistrate on the following grounds  i That the Magistrate had not recorded his reasons 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 iii That the dispossession of the 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 likely to lead to a breach of the peace
HELD  i The satisfaction under sub section
1 of section 145 is that of the Magistrate
The question whether on the materials before him be should initiate proceedings or not is therefore in his discretion which no doubt has to be exercised in accordance with the well recognised rules in that behalf
The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which had satisfied the Magistrate
86A B In the present case the Magistrate had expressed his satisfaction on the basis of the facts set out in the application before him after he had examined the appellant on oath
That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction 86C D ii The jurisdiction under section 145 being of an emergency nature the Magistrate must act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section are existent he cannot initiate proceedings 81 without a police report
The other view limits the discretion of the Magistrate and renders the words  other information  in section 1451 either superfluous or qualifies them to mean other information verified by the police
187D E Phutania vs Emperor 1924 25 Cr LJ 1109 Ganesh vs Venkataswara and Raja of Karyentnagar vs Sowcar Lodd Govind Doss 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 to 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 pass his final order
This reasoning would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession and wrongfully completes his act of dispossession the party so dispossessed cannot have the benefit of section 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 to cause a breach of the peace
Such a view does not take into consideration the second proviso to sub section
4 which was introduced precisely to meet such cases
87F H 88A 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 law it would be a case of both forcible and wrongful dispossession
88 D Reading section 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 the 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 the final order as he did
89 D Edwick v Hawkes  Jiba vs Chandulal AIR  A N Shah vs Nageswara Rao AIR 1947 Mad 133 and Subarna Sunami vs Kartika Kudal 1954 ILR Cuttk 215 applied