The crucial date for determining possession under Section 145 of the CrPC is the date of the preliminary order, and the fiction of relating the preliminary order back to the date of the petition cannot be applied.

CHANDRA REDDY, C. J.

( 1 ) THIS reference has been occasioned by two conflicting judgments, one of a Bench of the Madras High Court in Chunchu Narayana v. Karrapati Kesappa, (1951) 1 Mad LJ 102 : (AIR 1951 Mad 500) (a judgment of the year 1950) and the other of this Court in Subba Raju v. Koneti Raju (1955) Andh WR 114 : ( (S) AIR 1955 Andh 99), which declined to follow the former Bench decision. Our learned brother Basi Reddi J. , having regard to the Full Bench decision of this Court in Subbarayudu v. State, (1955) Andh WR 150 : ( (S) AIR 1955 Andhra 87) which ruled that the decisions of the Madras High Court rendered prior to 5/07/1954 were binding on the High Court of Andhra and that where a Division Bench of the Andhra High Court was inclined to take a view different from that of a Division Bench of the Madras High Court of equal strength, the case should be referred to a Full Bench, referred this matter to a Bench for being referred to a Full Bench. The following question has been referred by the Bench (of which one of us was a party):"whether under the second proviso to Sub-section (4) of Section 145 Cr. P. C. is the Crucial date the date of the preliminary order or the date of the petition, by virtue of the fiction that the preliminary order relates back to the date of the petition under Sub-section (1) of Section 145, Cri. P. C. ?"

( 2 ) FOR a better appreciation of the point involved in this reference, a few facts may now be stated. On a petition under Section 145 Cr. P. C. being presented on 29-4-1957, the Addl. First Class Magistrate No. 1 Guntur called for a report on 1-5-1957 from the Station House Officer, Tadepalli, as to whether there was any dispute which was likely to cause a breach of the peace. A report was received on 30-7-1957, whereupon the Magistrate passed a preliminary order on 10-8-1957 requiring both the parties to put in written statements of their claims in respect of the actual possession of the land and to file documents and adduce evidence in support of their cases. After an enquiry, the Magistrate held that the petitioner was dispossessed in April 1957 and therefore he was hot in possession within two months from the date of the preliminary order. In this view, he declared the respondents possession. Against this order, a revision was filed before the Sessions Judge, Guntur who while expressing the view that as the delay was due to the proceedings of the Court, the party could not be made to suffer on the principle "actus Curias neminem grava-bit" referred the matter to the High Court under Section 438 Cr. P. C. having regard to the conflict between the Madras and Andhra decisions.

( 3 ) INASMUCH as there has been a divergence of views on the question referred to us, we would prefer in the first instance to scrutinise and consider the language of the section uninfluenced by any case law. The relevant portions of Section 145 Cr. P. C. are as under:-"145: (1) Whenever a District Magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied from a police report or other information that a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction, he shall make an order in writing, stating the grounds of his being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respect the fact of actual possession of the subject of dispute and further requiring them to put in such documents, or to adduce by putting in affidavits, the evidence of such persons, as they rely upon in support of such claims. (2) xxxxxx xxx (3) xxx xxx xxx (4) The Magistrate shall then, without reference to the merits or the claims of any of such parties to a right to possess the subject, of dispute, peruse the statements, documents and affidavits, if

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