Report No. 37

381. Section 145(6) and penalty for disobedience.-

The suggestion of a High Court Judge1 makes the point that section 188, Indian Penal Code is attracted to an order under section 145(6). We are in agreement with the view. That is the view of most High Court also.

The controversy on the subject is only within the Allahabad High Court. A view was expressed by Mehrotra J. in one case2 that an order under section 145(6) was not one which the Magistrate "promulgated" within the meaning of section 188, Indian Penal Code. It was only a declaratory order, coupled with an order forbidding disturbance of possession and served upon the party concerned alone. According to him, section 188 was confined to orders promulgated to the whole public. The other Judge-Desai J. did not agree with this view, and pointed out,3 that an interpretation (that it was not covered by section 188) would emasculate section 145(6) completely.

On a difference of opinion between the two Judges, the matter was referred to Agarwala J. who held 4 that, qua the parties to the litigation in the criminal court, the order, having been passed in their presence, must be deemed to have been duly "promulgated". He also pointed out, that under Form No. 22 in the Fifth Schedule, an order under section 145 was intended for the public at large also. (On the fact, however, he held that there was no such disobedience as was punishable under section 188).

1. F.3.(2)/55-L.C., Pt. II, S. No. 33(a).

2. State v. Tugla, AIR 1955 All 423 (427, 428), para. 24.

3. Para. 12 in the AIR.

4. Para. 45 in the AIR.

382. An earlier decision1 of Desai J. had pointed out, that under section 188 of the Indian Penal Code, it is not necessary that annoyance must be actually caused; infringement with a tendency to cause annoyance etc. is enough.2

1. Jaswant v. State, AIR 1951 All 828 (829), para. 2.

2. As to section 188, Indian Penal Code in this connection, see also Ejaz Ahmad v. Maheshwar, AIR 1953 All 257 (259) (Misra & Beg JJ.).

383. The Assam High Court in a case1 decided that interference with an attachment under section 145(4), third proviso, did not fall under section 188, Indian Penal Code, because the attachment did not forbid any person to do any act. But it also observed, that under section 145(8) the Magistrate was competent to pass such an order.

Other High Courts2-3 have held that an order under section 145(6) falls within section 188.

The Assam decision to the contrary4 is under section 145(4)-(attachment).

1. Dibakar v. State, AIR 1961 Ass 94 (95), para. 4.

2. Ambika Thakttr v. Emperor, AIR 1939 Pat 611 (618), right-hand.

3. Dulal Chandra v. Sheo Kumar, AIR 1948 Cal 474 (482), para. 19 (P.B. Chakravarty C.J. and S.C. Lahiri J.).

4. Atar Khan v. State, AIR 1960 Ass 109 (111).

384. The controversy being a limited one as above, we do not consider an express provision to be necessary.

385. Section 145(6) and restoration to party previously in possession.-

It has been suggested by two High Court Judges1 that the power of the court to restore possession to the party who is deemed to be in possession under the fiction of two 'months' previous possession, should be provided for.

1. F. 3(2)/55-L.C., Pt. II, S. No. 33(b).

386. This raises an important point, namely, whether the Magistrate can simply "declare" who is entitled to possession, or whether he can pass an operative order restoring possession. The answer seems to be clear in view of the last portion of section 145(6). Case-law on the subject before the 1923 Amendment1 is no longer good law. Presumably, every case under the second proviso to section 145(4) would attract the jurisdiction to restore possession under section 145(6). Of course, if the forcible and wrongful possession has continued for more than two months, the party dispossessed cannot get the benefit of the second proviso.2-3

In fact, it has been held,4 that the order of restoration can be made even subsequent to the order of declaration.

We think, therefore, that no change in the language of the section is required, on this point.

1. Emp. v. Rameswar, 1904 ILR 27 All 300 (301).

2. Shri Ram v. State, AIR 1958 Punj 47 (52), para. 23.

3. Ram Naresh, AIR 1949 All 97 (98), para. 5.

4. Khudiram v. Jitendra Nath, AIR 1952 Cal 713 (718, 719, 725) (paras. 22 to 24, 27, 61 and 62).

387. Section 145(6A) (New).-

A new provision for publication of the final order under section 145(6) in the same manner as the order under section 145(3), may be added.1 Incidentally, this will have the effect of emphasising that a prosecution under section 188, Indian Penal Code, can be instituted if such order is violated .2

1. See section 145(6A), as proposed.

2. As to section 188, Indian Penal Code, see these cases

(i) State v. Shreemai Tuglati, AIR 1955 All 423.

(ii) Emp. v. Zahirus Saved, AIR 1934 Nag 114.

(iii) Rasi Gounder v. Muthu Gounder, 1964 IMLJ 440.

388. Section 145(7) and (8).- No changes are needed in section 145(7) or in section 145(8).

389. With reference to section 145(9), there appears to be a conflict of decisions1 on the question whether the first proviso to section 145(4) bars the powers of the Magistrate to summon a person who has not put in an affidavit.2 An amendment, to make it clear, that the first proviso to section 145(4) does not affect that power, is recommended.3

1. See-

(i) Bhagwat Singh v. State, AIR 1959 All 763, para. 3 (Desai J.).

(ii) Challamulhu v. Rajavel, AIR 1964 Mad 263 (265), para. 7.

(iii) Jodh Singh v. Bhagambar Doss, AIR 1961 Pun; 187 (189, 190), para. 8.

2. For previous law, see Tarapada, 1906 ILR 32 Cal 1093.

3. As to section 540, see Bahori v. Ghure, AIR 1960 Raj 15.

390. It is, of course, expected that the Magistrate will exercise his power to summon a witness for examination only when there was a satisfactory reason for not putting in the affidavit of the person sought to be summoned.

The matter is in the Magistrate's discretion. And, in exercising that discretion he should certainly have regard to the object of proceedings under section 145,-an object which has been lucidly dealt with by Rampini and Mokerjee JJ. in Tarapadas case1 as follows:-

"Section 145 was intended to provide a speedy remedy for the prevention of breaches of the peace arising out of disputes relating to immoveable property. The code contemplates a determination of this question without any reference to the merits of the respective claims of the disputing parties to a right to possess the subject of dispute. The question of possession, moreover, has to be determined with reference to a specified point of time, namely, the date of the initial order or, in the case of forcible dispossession, a date within two months next preceding such order.

The Legislature could hardly have contemplated an elaborate and protracted investigation, the result of which might, in many instances, be to defeat the very object in view, namely, an effective prevention of a breach of the peace. The whole object might obviously be defeated, if the Court could be compelled to summon and resummon witnesses at the choice of the parties.".

1. Tarapada v. Nurul Hug, 1906 ILR 32 Cal 1093 (1099, 1100).