R. H. Bhutani v. Miss Mani J. Desai & Ors.

Judgment

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 82 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. 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 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. Theacts 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 R R.H. BHUTAN! V. M. J. DESAI (She/at, J.) 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. 86 ( 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 . Il R.H. BHUTAN! v. M. J. DESAI (She/at, J.) 87 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. 88 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 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. A.LR .1•)47 ~-l:.id. 13~ . 8 u 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 Appeal allowed.