1958 Supreme(Ori) 19

HIGH COURT OF ORISSA
R. L. Narasimham, C. J. And S. Barman, J.
GANGADHAR SINGH - Appellant
Versus
SHYAM SUNDER SINGH - Respondent
Criminal Revn.  233  Of  1956
Decided On : MARCH 21, 1958

The period of two months mentioned in the second proviso to Sub-section (4) of Section 145 Cr.P.C. should be computed from the date of passing the preliminary order under Section 145 (1) Cr.P.C. and not from an anterior date.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 145 - POSSESSION - SECOND PROVISO TO SUB-SECTION (4) - INTERPRETATION - DELAY IN INITIATING PROCEEDINGS - ACTUS CURIAE NEMINEM GRAVABIT - NUNC PRO TUNE - APPLICABILITY - CIRCUMSTANCES WHERE DELAY ATTRIBUTABLE TO COURT - MAXIMS APPLICABLE.

Fact of the Case:

Petitioner challenged an order passed by the Magistrate under Section 145 Cr.P.C. declaring the possession of the opposite party in respect of 168.34 acres of Sir lands in village Kharsal and forbidding disturbance of such possession until eviction in due course of law. The petitioners were the second party in that proceeding before the Magistrate. The opposite party, Shyam Sunder Singha, is the eldest son of one Chandra bhanu Singh, who, prior to the abolition of the zamindhari system, was the zamindar of Kharsal Estate. One Hanuman Singha who is an agnate of the petitioners was the protected Thikadar of the village under the Zamindar. He was evicted from his rights in the village by a decree of the Civil Court for failure to pay Thika Jema and possession also was obtained with the help of the court sometime in 1932. The Sir lands of the village, according to the opposite party, were in the actual possession of the protected Thikadar Hanuman Singha and consequently by virtue of the delivery of possession of the Civil Court in 1932, the Sir lands came into the khas possession of the Zamindar who since then exercised various acts of possession over the same either by cultivating them himself, or getting them cultivated through bhag tenants.

Finding of the Court:

The Magistrate's finding was that by virtue of the delivery of possession given by the Civil Court in 1932, the zamindar obtained actual possession of all the Sir lands of the village. He appears to have disbelieved the petitioner's case that notwithstanding delivery of possession, they continued in actual cultivation of the Sir lands. He further held that the petitioners had forcibly obtained possession of Bundhen Duli and Darsa uper three dull lands on 17-6-1954 as mentioned by the landlord himself in his petition. He also held that the petitioners had regained possession of Jhua-Bhag lands (comprised in plot No. 896) and that they had sown paddy thereon and cut away the crop. In coming to this conclusion, he appears to have been very much influenced by the order of the Magistrate who dismissed the theft case (Ext. A) on 12-4-1955 and other evidence on record.

Issues: Whether the period of two months mentioned in the second proviso to Sub-section (4) of Section 145 Cr.P.C. should be computed from the date of passing the preliminary order under Section 145 (1) Cr.P.C. or else whether it may be computed from an anterior date if there was delay on the part of the Magistrate in initiating a proceeding under Section 145 Cr.P.C.

Ratio Decidendi: The court held that the second proviso to Sub-section (4) of Section 145 Cr.P.C. should be construed strictly and literally. The period of two months should be computed only from the date on which the preliminary order was actually passed under Section 145 (1) Cr.P.C. The court further held that the maxims "actus curiae neminem gravabit" and "nunc pro tune" would not apply where there are laches by the parties themselves. Merely by filing a petition for preventive action under that Section or reporting the matter to the Police a party is not relieved from taking any further steps to persuade the Magistrate to draw up a proceeding. If there was delay due to local enquiry or otherwise in drawing up the proceeding a party will not be permitted to take the date of his petition or the date of his reporting the matter to the Police to be the starting point for computation of the period of two months for the purpose of applying the second proviso to Section 145 (4 ).

Final Decision: The revision petition was allowed in part. The order of the lower Court declaring the possession of the opposite party in respect of the Sir Lands of Kharsal excluding bundhen Dulj, Dharsa Uper three Duli and Jhua Bhag lands was affirmed. In respect of those three items however, it was held that the petitioner have proved that they obtained possession more than two months prior to the initiation of the proceeding under Section 145 and that consequently they should be maintained in their possession until evicted in due course of law.