R.H. Bhutani Vs. Miss Mani J. Desai
& Ors  INSC 122 (23 April 1968)
23/04/1968 SHELAT, J.M.
CITATION: 1968 AIR 1444 1969 SCR (1) 80
CITATOR INFO :
E 1981 SC 18 (6)
Code of Criminal Procedure (Act 5 of 1898),
s.145- Satisfaction of the Magistrate under sub-s. (1)-Requirement for
recording reasons when satisfied--Calling for police report whether necessary
before recording preliminary order--Completion of dispossession before date of
preliminary order whether means that there is no existing dispute within the
meaning of sub-s. (1).
The appellant occupied an office cabin in
Bombay on leave and licence from respondent No. 1. In an application under s.
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 s. 351 Indian Penal Code but was released on
bail. Respondent No.1 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 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 version of
facts and on June 22, 1967 passed the final order under sub- s. (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-s. (1)
of s. 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 s. 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 s. 145(1) either
superfluous or qualifies them to mean other- information verified by the
187D-E] Phutania v. Emperor, (1924) 25 Cr.
L.J. 1109, Ganesh v. Venkataswara (1964) 2 Cr. L.J. 100 and Raja of
Karyentnagar v. Sowcar Lodd Govind Doss, (1906) I.L.R. 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 (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 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 to cause a breach of the peace. Such a view does not take into
consideration the second proviso to sub-s. (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 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 (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, 18 Ch.D.
199, Jiba v. Chandulal, A.I.R.
1926 Bom. 91, A. N. Shah v. Nageswara Rao,
A.I.R. 1947 Mad.
133 and Subarna Sunami v. Kartika Kudal,
Cuttk. 215, applied.
CRIMINAL APPELLATE JURISDICTION: Criminal
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.
S. Bhutani and Urmila Kapur, for the
B. R. L. Iyengar and P. C. Bhartari, for the
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 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 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
N.C. 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 s. 145 of the Code of Criminal
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
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
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 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
s. 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-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 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
s. 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 s. 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 s. 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 s. 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 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 disturbing the possession of
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 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-s. (1) and thereafter to make an enquiry under sub-s. (4) and pass a
final order under sub-s.
(6). 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 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 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-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,
,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 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 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 N.C. 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
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 N.C.
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
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 v. Emperor(1) the view -taken was
that it was a safe general rule for a Magistrate to refuse to take action under
s. 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 v. Venkataswara(2)
where, (1) (1924) 25 Cr.L.J.1109.
(2) (1964) 2 Cr,L.J,100 87 relying on Raja of
Karvetnagar V. Sowcar Lodd Govind Doss(1), 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(1), 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 s.
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 s.
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-s. (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 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 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 s. 145(1) 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 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 (1) (1906) I.L.R .29 Mad.561.
88 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 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
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 v. Hawkes(1) and jiba v. Chandulal) (2). 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
(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 v. 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 s. 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 s. 145, The (1) 18 Ch. D. 199. (2) A.I.R. 1926 Bom. 91.
(3) A.I.R.1947 Mad. 133.
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: (of 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 permissible under sub-s. (6).
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 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 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
We, therefore, allow the appeal, set aside
the High Court's order and restore that of the Trial Magistrate.
G.C. Appeal allowed.
(1) (1954) I.L.R.Cuttak 215.