( 1 ) ON 8-8-1955, Sukh Din made an application under Section 145, Code of Criminal Procedure to the Sub-Divisional Magistrate, Salon, district Rae Bareli claiming to be Sirdar of plot No. 369/2 in village Ahal, Police station Salon as heir of his deceased brother; Bhagwan Din. He alleged that Ganga Baksh Singh, the opposite party, who was previously the zamindar, had taken forcible possession of the plot on or about 24-7-1955.

( 2 ) THE Sub-Divisional Magistrate asked the Police for a report by 23-8-1955 as to the existence of an apprehension of a breach of the peace. The police report was not received on that date and was awaited for till 12-9-1955. Actually the police submitted a report on 31-8-1955 and this was received by the Magistrate on 8-9-1955 but for some unexplained reason, it was not put up before the learned Magistrate on 12-9-1955 and no preliminary order under Section 145 (1) of the code of Criminal Procedure was passed till 14-10-1955. The land in question was attached on 18-11-1955.

( 3 ) AFTER completing his enquiry the learned Magistrate by his order dated 24-4-1956 held that sukh Din was in possession all along. He released the attached crop in favour of Sukh Din and forbade Ganga Baksh Singh from interfering with Sukh Dins possession. Thereupon Ganga baksh Singh filed a revision before the Sessions Judge. This was heard by the learned Additional sessions Judge who held that Sukh Din had been, on his own admission, out of possession for more than two months on the date of the Magistrates preliminary order and as such he could not under the proviso to Sub-section 4 of Section 145, Cr. P. C. be deemed to have been in possession on the date of that order. The learned Additional Sessions Judge has accordingly referred the matter to this Court and recommended that the order passed by the learned Magistrate on 24-4-1956 be set aside and ganga Baksh Singh be declared to be in possession and be restored to possession.

( 4 ) THE reference came up for hearing before one of us. It was urged that Sukh Din could not be penalised for the laches of the learned Magistrate inasmuch as he had unnecessarily delayed the passing of the preliminary order. It was pointed out that if the learned Magistrate had passed the preliminary order on 12-9-1955 on which date the police report had been received, the dispossession would have been within two months of this preliminary order and Sukh Din would have been restored to possession. The argument was that Sukh Din could not be made to suffer for the unnecessary delay on the part of the learned Magistrate. It was urged that the decision in Chunchu Narayana v. Karrapati kesappa, ILR (1951) Mad 951 : (AIR 1951 Mad 500) (A), lays down the correct law when it approves of the application of the principle of actus curiae neminem gravabit (an act of the Court shall prejudice no man) and therefore the Magistrates preliminary order under Section 145 (1) of the Code of Criminal Procedure should be deemed to have been passed on the date the application was made to him,. e. , on the date he took cognisance of the application of Sukh Din. This view was contrary to the view expressed in the previous decisions of this Court and there-lore the learned single Judge referred the matter to a Division Bench which in its turn, in view of the importance of the question and the clear cleavage of opinion between different High courts, considered it proper to refer the matter to a larger Bench.

( 5 ) WE have heard the learned counsel for the parties at considerable length. The arguments addressed before us reflect the conflict of authorities, There is the opinion as represented by emperor v. Baijnath ILR 5 Luck 440 : (AIR 1929 Oudh 526) (B), Meharban Singh v. Bhola singh, ILR 57 All 488 : (AIR 1935 All 35) (C), Pearey Lal v. State, 1956 All LJ 267 (D), Tolan kalita v. Bubhan Chan-dra, AIR 1951 Assam 161 (E), Padmaraju Subba. Raju v. Padmaraju koneti Raju, (S) AIR 1955 An-dhra 99 (F), Ayyan Pad