The Magistrate has the discretion to pass an order under Section 145(6) of the Code of Criminal Procedure for restoration of possession, and the order can be passed subsequently to the final order under Section 145 of the Code.

M.P. Verma and A.N. Mukharji, JJ.

1. This petition in revision has been directed against an ORDER :passed by Shri M. Hussain, Magistrate, First Class Monghyr, dated the 21st March, 1967, refusing the prayer of the petitioner to be restored to possession of a certain portion of the disputed land. There was a proceeding under Section 145 of the Code of Criminal Procedure (hereinafter referred to as "the Code") between the parties giving rise to case No. 721/M of 1964. That proceeding was drawn up on 19th June, 1964. Before that, there was a proceeding under Section 144 of the Code. The petitioner was the second party to that proceeding. He had put forth his grievance in his written statement to the effect that, after the service of notice, the opposite party were trying to dispossess him from a portion of the land by putting up a mud wall there, and also alleged that this illegal act was done on the 12th May, 1964. The learned Magistrate, after a perusal of the affidavits and the documents filed before him, came to the conclusion that the petitioner was in possession of the disputed land, and so declared his possession. It may be mentioned that in this proceeding a Pleader-Commissioner had been appointed to measure the disputed land, and he found the disputed land to be a portion of the land belonging to the petitioner.

2. It appears that the mud wall was not removed, and so the petitioner tiled a petition under the provisions of Section 145(6) of the Code for restoration of possession over that portion of the disputed land from which he had been forcibly and wrongfully dispossessed within two months of the drawing up of the proceeding. The learned Magistrate then heard both sides and by the impugned ORDER :refused to restore the petitioner to possession of the said portion of the disputed land, as prayed for.

3. Mr. Parmeshwar Prasad Sinha, appearing for the petitioner, has urged that this ORDER :of the learned Magistrate is against the tenor of his own ORDER :, and so he had ample jurisdiction to pass an ORDER :under the provisions of Subsection (6) of Section 145 of the Code.

4. The learned Magistrate has rejected this prayer on the following grounds: His first ground is that the word "May" in Section 145(6) means that it is discretionary with the Magistrate, and not obligatory on him to pass an ORDER :under this Sub-section. There cannot be any dispute that the word "may" cannot be interpreted to mean "must". Suppose, in a case where the rightful owner has dispossessed a trespasser within two months of the drawing up of the proceeding, the Magistrate is not bound to restore the trespasser to possession. So, the discretion will be always there, and in suitable cases that discretion has to be judicially exercised. The second ground of the learned Magistrate is that the ORDER :of restoration ought to have been passed in the final ORDER :which was passed under Section 145 of the Code, that is, it cannot be passed subsequently. To meet this observation of the learned Magistrate, learned counsel has relied on a Division Bench decision of the Calcutta High Court in (1) Khudiram Mandal V. Jitendra Nath (A.I.R. 1952 Cal 713) where their Lordships observed that if, in a case where the Magistrate proceeds under the first proviso to Section 145(4), he is minded not only to declare a person, dispossessed within two months, to be entitled to possession, but also to restore possession to him, and that it is not necessary that he must do so by one and the same ORDER :; it is open to him to make a second ORDER :for restoration of possession on a subsequent date. Their Lordships further observed that there is nothing in Section 145(6) which makes it mandatory that an ORDER :for restoration of possession should form an integral part of the original ORDER :and be passed at one and the same time as the original ORDER :. The final ORDER :would be in the form given in Schedule V, Form 22, which stops at the declaration as to right to possess