IMPORTANT POINT
No order for restoration of possession could be passed in favour of the petitioner u/s 145 Cr.P.C. when the petitioner was out of possession for a period more than two months before the date of the preliminary order of the Magistrate passed u/s 145(1) of the Code.

Headnote:Criminal Procedure Code, 1973 -Section 145-Application under-Petitioner was out of possession for a period more than two months before date of preliminary order of Magistrate passed u/s 145(1)-Whether she could take advantage of proviso to sub-clause (4) of Section 145 of the Code ?-(No)-Chief Metropolitan Magistrate and High Court were right in coming to conclusion that no order for restoration of possession could be passed in favour of petitioner u/s 145-Whether petitioner is to be granted relief in exercise of powers of this Court under Art. 142 of Constitution of India ?-(No).
       Held that the order under Section 145(1) was passed by the learned Magistrate on 16.3.1993. The question is whether the Magistrate could have passed any order in favour of the petitioner under sub-section (4) of Section 145. Going by the main sub-clause (4) of Section 145 it is clear that the Magistrate could initially decide who was in possession as on the date when the order under Section 145(1) was passed on 16.3.1993. In cases where the proviso to the said sub-clause (4) applied, that is, if it appeared to the Magistrate that any party had been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), the Magistrate might treat the party so dispossessed as if the said party had been in possession on the date of his order under sub-section (1). In other words, if the conditions mentioned in the proviso to sub-section (4) were satisfied, the Magistrate could deem a person to be in possession as on the date of the order under Section 145(1) notwithstanding the fact that he was not infact in possession on that date, but lost possession earlier, within two months next before the order. In this case unfortunately there is no material to show that any report of a police office or other information was received by the Magistrate within the period contemplated by the proviso. On the other hand, petitioner s admissions show that she lost possession much before the period mentioned in the said proviso. (Para 9)
       Further held that both the learned Chief Metropolitan Magistrate and the High Court were right in coming to the conclusion that no order for restoration of possession could be passed in favour of the petitioner under Section 145 of the Cr. P.C. A contention was then raised that as the dispossession of the petitioner was continuing, and it amounted to a continuing wrong and, therefore, the proviso to sub-clause (4) must be deemed to be satisfied. We are afraid that such a contention based on continuance of dispossession, cannot be accepted. (Para 10)
       Consequently held that even according to the petitioner, she permitted the first respondent in November, 1991 to temporarily occupy 2500 sq. ft. in the ground floor of the premises. Subsequently the first respondent did not vacate and on the other hand, the 1st respondent allowed the second respondent to occupy the property claiming that he was her husband and thereafter they constructed a wall dividing the said portion from the other portion occupied by the petitioner. On these facts we do not find any special circumstances which are different from ordinary cases where a person permits a licensee or a tenant to occupy the premises and upon termination of the licence of the lease, the licensee or the tenant, as the case may be, does not vacate the premises or makes some construction on the property. No doubt the petitioner is an old lady of 75 years and there is some material to show that the respondents 1 and 2 have been indulging in similar litigations in Bombay. But that in our opinion is not sufficient to pursuade us to exercise powers under Article 142 of the Constitution of India. The Petitioner has adequate remedies under the law for recovery of possession. (Para 12)

JUDGMENT

M. Jagannadha Rao, J.-This special leave petition has been filed by the petitioner against the Judgment of the High Court of Bombay dated 9.7.1996 dismissing the writ petition (criminal) No. 540/1996. The High Court refused to quash the order of the learned Chief Metropolitan Magistrate, 4th Court, Girgaum dated 26.4.1996. The learned Chief Metropolitan Magistrate dismissed the application of the petitioner filed under Section 145 of the Code of Criminal Procedure on the ground that even as per the case of the petitioner, she was out of possession for a period more than two months before the date of the preliminary order of the Magistrate dated 16.3.1993 passed under Section 145(1). The Court pointed out that as per the case of the petitioner, she had been out of possession from November 1992 and, therefore, she could not take advantage of the proviso to sub-clause (4) of Section 145. This order is challenged in this Special leave petition.

2. The brief facts of the case are as follows :-

The petitioner is aged 75 years and is staying in one half of a house comprising 2500 sq. ft. in Malabar Hills, Bombay. She says that the first respondent approached her in November, 1991 for temporary accommodation to stay for two or three months. Subsequently, the second respondent, who is said to be the husband of the 1st respondent joined her and both of them were not willing to vacate premises i.e. the 2500 sq. ft. on the ground floor of the house. Petitioner is in possession of the remaining 2500 sq. ft. It is the specific case of the petitioner that in the second week of November, 1992 when the petitioner was out of station for sometime, the respondents Nos. 1 and 2 with the help of some other persons constructed a cement wall in the suit premises and divided the ground floor consisting of 5000 Sq. ft. into half and half and that this amounted to illegal occupation of 2500 Sq. ft., i.e. one half of the property, by the respondents Nos. 1 aqnqd 2. It is stated that on 21/22.2.1993 the respondents threatened the petitioner with dire consequences and, therefore, petitioner gave a complaint to the Inspector of Police, Gamdevi, Bombay on 26.2.1993. Thereafter the petitioner filed an application under Section 145 of the Cr. P.C. on 9.5.1993 bfore the learned Metropolitan Magistrate, 14th Court, Girgaum seeking restoration of possession of the of 2500 Sq. ft. on the ground floor.

3. The petitioner also refers to the filing of a civil suit for declaration and injunction, namely, RAD No. 346/1992 by the respondents claiming tenancy rights on the basis of an alleged tenancy agreement and cheques on which the signatures of the petitioner were allegedly forged. It is stated that the Court granted an interim order initially in favour of the respondents but ultimately the same was vacated and the said order was confirmed in appeal holding that there was no prima facie proof of tenancy. It is also stated that in that case the documents relied upon by the second respondent were held to be prima facie forged documents. The petitioner also states that a complaint was made by the petitioner against the respondents for cheating and a case was registered and writ petition bearing No. 973/1993 dated 27.7.1993 was filed by the respondents for quashing the same.

4. It is also stated by the petitioner that respondents filed criminal application No. 9731993 on 27.7.1993 for quashing the section 145 criminal proceedings launched by the petitioner but the said writ petition was dismissed. It appears that at the request of the petitioner the learned Advocate General, Bombay launched proceedings against the respondents under the Maharashtra Vexatious Litigation (Prevention) Act, 1971 and the High Court of Bombay, after noticing that the respondents were illegally and forcibly occupying several premises and were instituting various proceedings, came to the conclusion that the said proceedings started by the respondents were vexatious and that they should not be

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1997 Supreme(SC) 820

IMPORTANT POINTNo order for restoration of possession could be passed in favour of the petitioner u/s 145 Cr.P.C. when the petitioner was out of possession for a period more than two months before the date of the preliminary order of the Magistrate passed u/s 145(1) of the Code.

Cases Referred (1)

IMPORTANT POINT
No order for restoration of possession could be passed in favour of the petitioner u/s 145 Cr.P.C. when the petitioner was out of possession for a period more than two months before the date of the preliminary order of the Magistrate passed u/s 145(1) of the Code.