Restoration of possession under Section 145 of the CrPC requires a clear finding of wrongful dispossession within two months prior to the preliminary order; failure to establish this fact invalidates the order.

1. Invoking jurisdiction of this Court under S.482 of the CrPC, the petitioner herein calls in question the order dated 12-4-2017 passed by the Sessions Judge, Bastar at Jagdalpur in Criminal Revision No.5/2017 by which the learned Sessions Judge has declined to set aside the order dated 10-2-2017 passed by the Sub-Divisional Magistrate, Jagdalpur, directing restoration of possession to respondent No.1 in exercise of power conferred under S.145 of the CrPC.

2. The aforesaid challenge has been made on the following factual backdrop:

[For the sake of convenience, the petitioner herein will be referred as party No.2 and respondent No.1 herein will be referred as party No.1 as they were referred before the Sub-Divisional Magistrate.]

2.1. The petitioner and respondent No.1 belong to Christian community. The dispute relates to the properties owned by Methodist Church in India, Jagdalpur, District Bastar, including Church, girls home, boys hostel, Kushal Niwas, Aaradhana Bhawan and other properties. On account of certain dispute with regard to issue of actual / de facto possession over the said Church, the matter was reported to the jurisdictional police, which on apprehending threat to public peace and tranquility filed an istegasha before the Court of Sub-Divisional Magistrate, Jagdalpur on 21-8-2015 to resolve the dispute of actual physical possession under the provisions of S.145 of the CrPC which was taken cognizance by the learned Magistrate and proceedings under S.145 of the CrPC were initiated being Misc. Criminal Case No.7/2015. Thereafter, preliminary order dated 26-8-2015 was passed by the learned Magistrate directing the parties to submit their reply and adduce their evidence in support of their respective claim. In response to the notice on preliminary order passed by that Court, both the parties submitted their written response and the petitioner being party No.2 adduced his evidence by examining himself, whereas respondent No.1 being party No.1 examined himself and four other witnesses listed in the istegasha. The learned Sub-Divisional Magistrate passed final order on 10-2-2017 granting application under S.145 of the CrPC and thereby declaring that party No.2 i.e. the petitioner herein has caused breach of peace and possession of party No.1 / respondent No.1 herein was established and party No.1 was declared possession holder of the said Church and restrained party No.2 from entering into the said Church.

2.2. Feeling aggrieved and dissatisfied with the order granting application under S.145 of the CrPC, the petitioner herein filed revision under S.399/401 of the CrPC before the Court of Sessions. The Court of Sessions by its impugned order upheld the order passed by the learned Sub-Divisional Magistrate leading to filing of this petition under S.482 of the CrPC by the petitioner herein questioning the order passed by the revisional Court affirming the order of the learned Sub-Divisional Magistrate as unsustainable and bad in law. Respondent No.1 has filed his reply to the said petition opposing the same.

3. Dr. N.K. Shukla, learned Senior Advocate appearing for the petitioner, would submit that the learned Sub-Divisional Magistrate has committed legal error in not determining the actual date of dispossession on the date of passing of preliminary order. He would further submit that the learned Magistrate while granting final order did not determine the date of dispossession prior to next two months before from the date of passing of preliminary order and thereby committed a legal error and as such, the conditions precedent for exercise of power under S.145 (1) and (4) of the CrPC have not been recorded by the learned Magistrate. Therefore, the order impugned passed by the learned Sessions Judge upholding the order passed by the Sub-Divisional Magistrate deserves to be set aside.

4. Mr. V.V.S. Murthy, learned Senior Advocate, ably assisted by Mr. Saurabh Dangi, Advocate, appearing for respondent No.1, would submit that ques