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Criminal Miscellaneous No. 35/Q of 1985, decided on 2nd February, 1986.

---S. 145‑No allegation to the effect that dispute arising out of dispossession was likely to cause .breach of peace was made in application‑Police report revealing that there was great tension and bickering between parties and same was likely to result in breach of peace‑Reference in Police report was also made to a case registered under S. 448/34, P. P. C. at instance of respondents and proceedings under Ss. 107 and 151, Cr. P. C.‑Magistrate before making order under S. 145(1), Cf. P. C., held, could take into account Police report and other information received by him regarding matter in dispute and was not obliged to look into contents of application only.

‑‑ S. 145(4), first proviso‑Period of two months mentioned in S. 145(4), first proviso is to be reckoned with reference to the date of preliminary order and not the date of submission of application under S. 145, Cr. P. C. ‑Period intervening date of dispossession and date of preliminary order was to be looked into and date of filing of application under S. 1451 was immaterial.

Muhammad Akbar v. Muhammad etc. 1983 P Cr. L J 1355 distinguished.

Ghulam Mustafa v. Abdul Karim and others P L D 1964 Lah. 9 ; Mahmood Beg and another v. Ehsan Beg A I R 1941 Oudh 515 and Muhammad Ali Yar Muhammad v. Shamsul Haq Pir Zialdin Shah and others A I R 1940 Sind 33 ref.

‑‑ S. 145(1) ‑Police report can form basis of preliminary order- Order calling for that report cannot be treated as preliminary order‑ Magistrate, in preliminary order has to state grounds being satisfied there existed a dispute likely to cause breach of peace and also direct parties concerned to attend his Court in person oar by pleader, within a Lime to be fixed by him and to put in written statement of their respective claims in respect of actual possession of subject of dispute‑Order by Magistrate asking Police to submit his report not mentioning any such details, held, would not be preliminary order.

‑‑ Ss. 561‑A, 439‑A & 439(4)(6)‑Inherent powers under S. 561‑A, Cr. P. C., held, were as much available qua a revisional order passed under S. 439‑A, Cr. P. C. as against any other order Provision of S. 561‑A, Cr. P. C. however could not be made use of to defeat provision of S. 439(4)(6)‑High Court, in view of facts and circumstances of each case would determine whether petition under S. 561‑A seeking quashment of a revisional jurisdiction order called for exercise of its inherent powers‑Fact that a petition under S. 561‑A, Cr. P. C. was directed against a revisional order, by itself, was not a valid ground for dismissing such petition.

The State v. Ch. Altaf Hassain and 2 others P L D 1978 Lah. 1259 ; Muhammad Afzal v. Aminul Haq and another 1982 P Cr. L J 340 and Sarwar Ali v. The State 1983 P Cr. L J 329 distinguished.

Durrani v. Muhammad Jan etc. P L D 1979 Quetta 17 ; Muhammad Bakhsh v. Iqbal Ahmed and another 1980 P_ Cr. L J 191 and Gulab Din v. Muhammad Salim 1985 P Cr. L J 721 ref.

M. Kaukab Iqbal for Petitioners. Malik Rab Nawaz Noon for Respondents Nos. 1 and 2.

S. B. Chauhan for A. A.‑G. for the State.

Date of hearing : 2nd February, 1986.

This petition under section 561‑A, Cr. P. C. has arisen out of an application under section 145, Cr. P. C. The application was filed by respondent No. 1, Muhammad Shafiq, against the petitioners, Abdul Hayee and others. It was alleged by respondent No. 1 that the petitioners had illegally occupied his shop in Rawalpindi City, on Ist November; 1984 and that he had got registered a case against the petitioners under section 448/34, P. P. C. ]'he said application was submitted before a Magistrate on 27th December, 1984 and it was on the same day that be asked for the report of S. H. O., Police Station Rawalpindi City. In the report submitted by the police, in the form of a calendar under section 145, Cr. P. C., it was pointed out that proceedings under sections 107 and 151, Cr. P. C. had also been taken against the parties and that there was imminent danger of breach of peace. It appears that it was on the basis of police report that respondent No. 2, Mst. Riaz Begum, was also impleaded as a party to proceedings before the learned Magistrate. On 18th February, 1965, the learned Magistrate directed that the shop be sealed and the petitioners summoned for 2nd March, 1985 to file their written statement. Thereupon, the petitioners entered appearance before the learned Magistrate and submitted their written statements. The learned Magistrate then recorded the parties' evidence Matter was finally disposed of by his order dated the 20th July, 1985. It was held by the learned Magistrate that since the respondents were not dispossessed within two months next before the date when order for summoning the petitioners was passed they could not have the benefit of the first proviso to subsection (4) of section 145, Cr. P. C. and as such possession of the disputed property could not be restored to them. Application under section 145, Cr. P. C. was, accordingly, dismissed. Respondents Nos. 1 and 2, hereinafter referred to as the respondents, went in revision before an Additional Sessions Judge. View taken by the learned Additional Sessions Judge was that since the application, was made within two months of the dispossession of the respondents, relief prayed for by them could be granted. He, therefore, accepted the revision as well as the application. Feeling aggrieved by the order of the learned Additional Sessions Judge, the petitioners have filed the present petition.

2. It was contended by learned counsel for the petitioners that in the application submitted by respondent No. 1 there was no allegation to the effect that the dispute arising out of his dispossession was likely to cause breach of peace and, therefore, provisions of section 145, Cr. P. C. could not be invoked by him. It is true that in his application respondent No. 1 did not make such an averment but the police report did reveal that there was great tension and bickering between the parties and the same was likely to result in breach of peace. In this connection, reference was also made to case registered under sections 448/34, P. P. C.: at the instance of the respondent and proceedings under sections 107, and 151, Cr. P. C. It was also held by the two Courts below that there existed a dispute which was likely to cause breach of peace. Before making order under subsection (1) of section 145, Cr. P. C. the learned Magistrate could take into account the police report and other informa tion received by him regarding the matter in dispute and he was not obliged to look into the contents of the application of respondent No. 1 only. As indicated above, in that application also there was reference to, case registered under sections 448/34, P. P. C. In the circumstances, I am unable to agree with learned counsel for the petitioners that since in the said application there was no mention of apprehension of breach of peace, the impugned order could not be passed.

3. It was also urged by learned counsel for the petitioners that since, on their own showing, the respondents were not in possession of the disputed property within two months next before the date when order under subsection (1) of section 145, Cr. P. C. was passed by the learned Magistrate, possession of the property in question could not be restored to them under subsection (6) of section 145, Cr. P. C. In reply, it was submitted by learned counsel for the respondents that as the application under section 145, Cr. P. C. was made within two months of the dispossession of the respondents, it was within time He cited Muhammad Akbar Muhammad etc. (1983 P Cr. L J 1355), to support his argument. He did not agree with learned counsel for the petitioners that order under subsection (1) of section 145, Cr. P. C. hereinafter referred to as preliminary order, was passed by the learned Magistrate on 18th February. 1985. According to him, it was made on 27th December, 1984 when the police report was called for and since the respondents were dispossessed within two months next before 27th December 1984 they could not be non‑suited on the ground of limitation. As indicated above, the respondents were dispossessed on 1st November, 1984.

4. A perusal of first proviso to subsection (4) of section 145, Cr. P. C.I would show that the period of two months mentioned therein is to bet reckoned with reference to the date of preliminary order and not the‑g date of submission of application under section 145, Cr. P. C. In the, case of Muhammad Akbar, relied upon by learned counsel for the respondents, proceedings under section 145, Cr. P. C. were initiated by the police after one year and three months of the dispossession of the aggrieved party. Since the period of two months had run out long before the taking out of the said proceedings, there was no occasion to calculate the period with reference to date of preliminary order. It will be appreciated that if a party filing appeal against an order applies for copy of the order after the expiry of the period prescribed for filing the appeal. the appeal can straightaway be dismissed on the ground of limitation without adverting to the period taken by the Copying Agency for supplying copy of the order. In the case of Muhammad Akbar, it was loot held by this Court that a person who remains out of possession for a period exceeding two months next before the date of preliminary order is entitled to have an order under subsection (6) of section 145, Cr. P. C., hereinafter referred to as final order. The precedent case is, therefore, of no help to the respondents.

S. As indicated above, while examining the question of applicability of first proviso to subsection (4) of section 145, Cr. P. C., one has to look to the period intervening the date of dispossession and the date of C preliminary order. The date of filing of the application under section 145, Cr. P. C. is immaterial. Similar view was expressed in Ghulam Mustafa v. Abdul Karim and others (P L D 1964 Lah. 9), Mahmood Beg and another v. Ehsan Beg (A I R 1941 Oudh 515) and Muhammad Ali Yar Muhammad v. Shamsul Haq Zialdin Shah and others (A I R 1940 Sind 33). Finding of the learned Additional Sessions Judge that since the respondent made application under section 145, Cr. .P. C. within two months of losing possession of the disputed shop they, could be restored possession thereof is in complete disregard of the relevant provisions of law, and, therefore, not sustainable.

6. This brings me to the argument of learned counsel for the respondents that order dated the 27th December, 1984 by which the learned Magistrate asked for the police report, is the preliminary order. According to subsection (1) of section 145, Cr. P. C. police report can form basis of preliminary order and, therefore, the order calling for that report cannot be treated as preliminary order. Further, in the preliminary order the Magistrate has to state the grounds of being satisfied that there exists a dispute likely to cause breach of peace and also direct the parties concerned to attend his Court in person or by pleader, within a time to be fixed by him, and to put in written statement of their respective claims as respects the actual possession of the subject of dispute but there is nothing of the sort in the order dated 27th December, 1984 by which the learned Magistrate directed the S. H. O. concerned to submit his report. The said order is, therefore, not the preliminary order in this case.

7. Order of the learned Magistrate which fulfils the requirements of subsection (1) of section 145, Cr. P. C. is his order dated the I5th February, 1985. That order is, therefore, the preliminary order and the period of two months is to be computed with reference thereto It is respondent's own case that they were dispossessed oh 1st November, 1984. This means that they were not dispossessed within two months next before the preliminary order. Learned Additional Sessions Judge had, therefore, no Jurisdiction to order, under subsection (6) of section 145, Cr. P. C., that possession of the disputed property be restored to them.

8. Last and belated plea raised by learned counsel for the respon dents was that this petition under section 561‑A, Cr. P. C. is not competent because it is in the nature of a second revision which is barred by clause (b) of subsection (4) of section 439, Cr. P. C. In this connection reliance was placed by him on The State v. Ch. Altaf Hussain and 2 others (P L D 1978 Lah. 1259), Muhammad Afzal v. Aminul Haq and another (1982 P Cr. L J 340) and Sarwar Ali v. The State (1983 P Cr. L J 329). In reply, it was submitted by learned counsel for the petitioners that in suitable cases relief under section 561‑A, Cr. P. C. could be allowed to a party assailing a revisional order. He cited Durraai v. Muhammad Jan etc. (P L D 1979 Quetta 17), Muhammad Bakhsh v. Iqbal Alerted and another (1980 P Cr. J 191) and Gulab Din v. Muhammad Salim (1985 P Cr. L J 721), to support his arguments.

9. All the three cases relied upon by learned counsel for the respondents are distinguishable on facts. It was in view of the particular facts of the said cases that it was‑ held that they did not attract the provisions of section 561‑A, Cr. P. C. In the case of the State, it was felt that petition under section 561‑A, Cr. P. C. was, in reality, a petition seeking second revision and, therefore, barred. Observations made in this regard read as follows :‑

"Thus, in this case, in so far as the merits are concerned, if the order of the learned Additional Sessions Judge is interfered with, it would amount to exercise of revisional jurisdiction and as second revision has been barred, therefore, the petition moved by the State under section 561‑A, Cr. P. C. has no merit and the same is accordingly dismissed.

In the case of Muhammad Afzal, petition under section 561‑A, Cr. P. C. was found to be a revision petition in the garb of a petition under section 561‑A, Cr. P. C. Before filing petition under section 561‑A, Cr. P. C. the petitioner had submitted a petition for revision before the High Court which was dismissed "as it was incompetent due to the provisions of section 439 (4)(b), Cr. P. C.". In the case of Sarwar Ali. it was observed that provisions of section 561‑A, Cr. P. C. could not be made use of for circumventing the provisions of clause (b) of subsection (4) of section 439, Cr. P. C.

10. Above observations were made after examining the cases on merits and holding that the revisional orders challenged therein were unexceptionable. None of the petitions, under section 561‑A, Cr. P. C. made in the said cases was dismissed in limine merely on the ground that provisions of section 561‑A could not be pressed into service to assail a revisional order.

11. In the said cases although it was stated, and very rightly, that a second revision was not competent yet it was not categorically ruled that in no case a petition under section 561‑A will be entertained against a revisional order. On the other hand, in the case of the State, it was clearly indicated that provisions of section 561‑A can be invoked if exercise of jurisdiction under section 439‑A"'amounts to abuse of process of Court or the other conditions of the said provisions are satisfied". The observations in point read as follows :‑

"As regards extraordinary jurisdiction under section 561‑A, Cr. P. C. suffice it to observe that unless the exercise of jurisdiction under section 439‑A. Cr. P. C. amounts to abuse of process of Court or the other conditions of the said provisions are satisfied, this Court would not interfere with the exercise of revisional jurisdiction by a Sessions Court. It may be observed here that the exercise of jurisdiction. under section 561‑A, Cr. P. C. by this Court with regard to orders passed under section 439 (439‑A), Cr. P. C. would not at all be exercised in such a manner as to give an impression as if a second revisional jurisdict4,on is being assumed. Only rare case would really fall under section 561‑A, Cr: P. C., where it would be possible to discern the exercise of inherent power clearly under section 561‑A, Cr. P. C., and where it is impossible, to confuse it with revisional jurisdiction."

12. In the cases of Durrani, Muhammad Bakhsh and Gulab Din, cited by learned counsel for the petitioners, petitions under section 561‑A, Cr. P. C. were not only entertained but also allowed. In Durrani's case. it was noted that "within its inherent powers the High Court has jurisdiction to interfere with the orders of the Sessions Judge passed under section 439‑A, Cr. P. C." The case of Gulab Din had also arisen out of an application under section 145, Cr. P. C. but the cases of Durrani and Muhammad Bakhsh were under other provisions of law. In Gulab Din's case it was held that a petition under section 561‑A, Cr. P. C. is competent notwithstanding the provisions of clause (b) of subsection (4) of section 439, Cr. P. C. Relevant observation occurring in the said case read as under : ‑

"While dealing with the matter I am conscious that the impugned order had been passed by the learned Additional Sessions Judge in his revisional jurisdiction under section 439‑A, Cr. P. C. and clause (b) of subsection (4) of section 439, Cr. P. C., contains clear bar to the exercise of revisional powers by this Court. The Legislature in its wisdom has kept the inherent jurisdiction of the High Court under section 561‑A, Cr. P. C., in tact despite recent amendments made in the Code of Criminal Procedure, so this Court in case of patent legal error and grave injustice committed by the lower forum can competently interfere for redressing the grievance of the party so affected."

13. Having examined the case law cited before me I have come to the conclusion that inherent powers under section 561.‑A, Cr. P. C. arc as much available qua a revisional order, passed under section 439‑A, Cr. P. C.. as against any other order. If intention of the Legislature had been to exempt revisional orders from the operation of section 561‑A, necessary amendment would have been made in section 561‑A but that has not been done. There is nothing in the provisions of section 561‑A to suggest that they cannot be invoked to assail a revisional order even if it amounts to abuse of the process of the Court or defeat:; the ends of justice. If an Additional Sessions Judge, while exercising powers under section 439‑A, sets aside the order of a Magistrate just, by saying that he does not like the face of the Magistrate, will the party aggrieved by the order of the Additional Sessions Judge be debarred from assailing the revisional order under section 561‑A. Answer to this question, for obvious reasons, will be in the affirmative. White holding that in appropriate cases, its inherent powers under section 561‑A can be exercised by the High Court qua a revisional order also, I agree with the view ex pressed in the cases The Sate, Muhammad Afzal arid Sarwar Ali that the said provisions cannot be made use of to defeat the provisions of clause (6) of subsection (4) of section 439, Cr. P. C If a petition under section 561‑A, Cr. P. C is, for all intents and purposes, a petition seeking second revision it should be dismissed but if it really falls within the purview of section 561‑A it should not be thrown out just for the reason that it is directed against a revisional order. It will, therefore, be in view of the facts and circumstances of each case that the High Court would determine whether petition under section 561‑A seeking quashment of a revisional order calls for exercise of its inherent powers. The fact that a petition under section 561‑A is directed against a revisional order, by itself, is no a valid ground for dismissing such petition.

14. 1 now proceed to examine if the petition before me attracts the provisions of section 561‑A, Cr. P. C. As pointed out earlier, finding of the learned Additional Sessions Judge that since application under section 145, Cr. P. C. was made within two months of the dispossession of the respondents, it was within time is in utter disregard of the relevant provisions of law, namely, first proviso to subsection (4) of section 145. It has also been noted that the final order passed by him is without jurisdiction because the respondents were not in possession of the disputed property within two months next before the making of the preliminary order. Order of the learned Additional Sessions ‑ Judge regarding restoration of possession, therefore, amounts to abuse of process of law and it is necessary to quash it with a view to securing the ends of justice. Accordingly, it is a fit case for exercise of inherent powers under section 561‑A, Cr. P. C.

15. In result, I accept this petition, set aside the order of the learned Additional Sessions Judge and restore the order of the learned Magistrate by which application under section 145, Cr. P. C. was dismissed.

M. B. A. Petition accepted.

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