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1951 Criminal Revision No. 534 of 1950, decided on 17th January,

, S. 145 (4) Proviso --To be construed literaly‑Application within months of dispossession but order tender S. 145 (1) delayed for ten months ‑Party dispossessing, held, entitled to retain possession.

Proceedings ‑under section 145 Criminal Procedure Code started on petition on 3rd of May, 1948, but the petition having been referred to the police, order under section 145 (1) was only passed on 30th of March 1949.

Held, that in construing the proviso to section 145 (4) the Court must follow the wording of the proviso literally ; and if the party is found to have been forcibly and wrongfully dispossess ed on a date outside two months next before the date of the order, the proceedings cannot be maintained.

A. I R. 1945 Mad. 216 rel. on.

B. A. Siddiky, for Petitioner.

Birendra Kumar De, for Other Party.

‑In this case a rule was issued on the District Magistrate of Mymensingh at the instance of one Debendra Chandra Sarkar who was the first party in a procedure before Mr. P. Choudhury, the ' Rural Magistrate of Durgapur. The proceedings started on a petition which was filed before the Magistrate on the 3rd of May, 1948, and in that petition the petitioner charged' the twenty members of the opposite parties with having forcibly taken possession of certain khas reserve forest belonging to the two annas trust estate of the Susang xemindars in the District of Mymensingh. The only action which the Rural Magistrate of Durgapur took on the 3rd of May, 1948, was to send the petition to the Officer‑in‑Charge of the Durgapur police station for an enquiry and report .by the 24th of May, 1948. The Police Officer submitted his first report on the 26th of June, 1948, but the Magistrate was not satisfied with it and called for a further report from the Officer‑in‑Charge of the police station. There was some delay and the report was not submitted until the 30th of March, 1.949, and on that date the Magistrate drew up. proceedings under section 145 of the Code of Criminal Procedure and attached the disputed property.

On the 13th of February, 1.950, the Rural Magistrate disposed of the matter by cdncelling the proceedings under section 145 of the Code and withdrawing the order of attachment. This he did on the representation of the second party that the proceedings could not proceed in view of the proviso to subsection 4 of section 145 of the Code. That proviso is in the following terms.

" Provided that, if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed he may treat the party so dispossessed as if he had been in possession at such date".

In the present case the initial order was passed on the 30th of March, 1949, whereas dispossession took place within two months of the petitioner's application of the 3rd of May, 1948. If the proviso is to be interpreted literally, then the order of the Rural Magistrate must stand ; because dispossession was not within two months of the date of the order. If, however, the proviso is to be interpreted generously, and if it is to be held that as the petitioner moved the Court within two months of the date of his dispossession then the order of the Rural Magistrate cannot be maintained.

The Sessions Judge in this connection makes the following observation with regard to the argument which was placed before him:----

Now the question is whether the proviso stating that the period of 2 months should be counted from the date of pro ceeding or from the date of the application. On this point the application was no doubt filed with 2 months of the dispossession but proceeding was delayed. According to the Madras view the proviso should be interpreted reasonably and liberally but according to the other High Courts including Nagpur, Oudh Chief Court, Lahore, Allahabad and Sind, the words used in this section are to be construed liberally. By, the time the proceeding was drawn up, the possession of the second party became nearly one year old. It may be said that there was attachment order passed by the Court. But this was done at the time the proceeding was drawn up when the second party's possession was one year old. So in the circumstances, I am clearly of opinion that the Magistrate's action in cancelling the proceeding in view of the proviso cannot, be questioned."

Mr. Siddiquy appearing before me on behalf of the petitioner has asked that the proviso should be interpreted reasonably and liberally according to the view taken in the Madras High Court. It is true that this view has been expressed in the case of Srinivasa v: Dasaratha in 52 Mad. 66 ; but, as appears from B. B. Mitra's annotated edition of the Code of Criminal Procedure, Vol. I, page 358 a later decision of the Madras High Court does not follow the previous one but follows the decisions of other High Courts of Lahore, Allahabad, Sind and Oudh. The following extract is to be found in the notes on that page:‑‑

"In the recent case of Arunachala v. Chinnaduri A. I. R. 1945 Mad. 216, Happell, J., of the Madras High Court disagreed with the view taken in Srinivasa v. Dasaratha, supra followed Pichai Moopean v. Narayanaswami Moopan, 1.931 Mad. Cr. C. 168 and held that the person dispossessed could be treated as in possession on the date of the preliminary order only if he had been dispossessed within two, months of that date".

It seems to me that in construing this proviso the. Court must follow the wording of the proviso literally; and if the party is found to have been forcibly and wrongfully dispossessed on a date outside two months next before the date of the order, then the proceedings cannot be maintained. In this view of the case the decision of the Rural Magistrate of Durgapur of the 13th of February, 1950, is the correct decision and must be upheld. The rule is accordingly discharged.

Costs which are in the discretion of the Court must be paid as assessed by the Court.

A. H. Rule discharged.

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