Crucial date for invoking.

The question referred to the Full Bench is whether the period of two months mentioned in the second proviso to section 145 (4), Criminal Procedure Code, as the period within which a person forcibly and wrongfully dispossessed could get relief should be literally and strictly construed with reference to the date of the preliminary order, as mentioned in that proviso, or whether it should be liberally and equitably construed with reference to the date of the petition.

There is conflict of judicial opinion on this question. The leading decision in favour of the liberal interpretation is the Bench decision of this Court in Narayana v. Kesappa1, which refers to the conflicting decisions of this High Court on this question. A Bench decision of the Andhra High Court in Subba Raju v. Koneti Raju2, delivered

* 3rd December, 1965.

**25th August, 1966.

by Subba Rao, G.J., as he then was,dissented from the above decision and took the other view based on literal interpretation of the proviso. As the earlier Bench decision of this High Court was rendered prior to the formation of the Andhra High Court, and was binding on that High Court, the question was referred to a Full Bench of the High Court, in K. Venkataramiah v. C. Sitharamiah1, and it relied on the later Bench decision of its own High Court and did not follow the earlier Bench decision of this Court. It held that the crucial date under the second proviso to sub-section (4) of section 145, Criminal Procedure Code, is the date of the preliminary order, that for the purpose of this proviso, a specific period of two months next before the date of such order is fixed for invoking the fiction embodied in the proviso and that there is no room for applying any such fiction relating to the date of the preliminary order to the date of the petition under sub-section (1) of section 145, Criminal Procedure Code. In Subarna v. Kartika2, the Orissa High Court and in Bhadramma v. Kotam Raj3, the Hyderabad High Court followed the earlier Bench decision of this High Court in Narayana v. Kesappa4. dissenting from earlier decisions of their own Courts to the contrary. The decision of the Hyderabad High Court is no longer good law after the Full Bench decision of the Andhra Pradesh High Court referred to above. A Full Bench of the Allahabad High Court in Ganga Bux Singh v. Sukhdin5, has also dissented from the Bench decision of this High Court. In fact, it is clear from the Full Bench decision of the Andhra Pradesh High Court that all the other High Courts had dissented from the view expressed in the Bench decision of the Madras High Court. It is unnecessary to refer to all the decisions in detail, and it is sufficient to consider the principles on which they are based in order to decide the question referred to the Full Bench.

Chapter XII of the Criminal Procedure Code, which contains section 145, is one of the Chapters in Part IV of the Criminal Procedure Code dealing with prevention of offences. The object of a proceeding under section 145, Criminal Procedure Code, is to put an end to a dispute as to immovable property so as to prevent a breach of the peace. In Nanhe Mal v. Jamil Ur Rahman6, Mukerji, J., said:

“ An order under Chapter XII is more or less an executive order and it is designed to avoid a breach of the peace.”

In Bhinka v. Charan Singh7, the Supreme Court has held that the order of a Magistrate under section 145, Criminal Procedure Code, is merely a provisional police order based upon the fact of previous possession and it is made only for the purpose of preventing a breach of the peace, and being made irrespective of the rights of the parties, it cannot enable the person in whose favour it is made to resist a suit based on title. It was pointed out in that decision that the foundation of jurisdiction under section 145, Criminal Procedure. Code, being only an apprehension of a breach of the peace the power conferred on the Magistrate is a limited one, namely, to make a temporar