Henry Thoby Princep, J.

1. The matter before us relates to an order passed underSection 145 of the Code of Criminal Procedure holding that Mr. Middleton was inactual possession of the colliery in dispute and should be so retained inpossession until the matter in dispute had been settled by a competent Court.

2. The objection taken on which the rule was granted wasthat the Magistrate did not find actual possession on the 29th of December, thedate on which he passed an order under Section 145(1) for taking proceedingsunder that section, but that he found possession immediately before the 10th ofNovember, the date of the order that he had passed between the parties underSection 144 of the Code of Criminal Procedure.

3. No doubt under Section 145 it is incumbent on aMagistrate ordinarily to find actual possession at the date of his passing anorder under sub-sec. 1 and the proviso to sub-sec. 4 permits a Magistrate toconsider previous possession, within two months t787] before such date underthe circumstances stated therein. It has been contended before us, and we thinkno objection can be raised to this argument that the circumstances of this casedo not come within the terms of that proviso. It cannot be disputed that theLegislature could not have had in contemplation a case such as the present. TheMagistrate has found that, by reason of the order under Section 144 passed onthe 10th November, the possession of neither of the disputing parties existedfrom that date up to the date of the proceedings taken under Section 145, andconsequently he has proceeded to consider the possession before the date ofthat order under Section 144, in order to determine who was lawfully inpossession at that time, for it may be justly considered that the exercise ofany rights on such possession was merely suspended by the order under Section144. Some recent cases have shown to this Court how disastrously an order underSection 144 may operate in regard to the exercise of private rights of partiesand the present case may be added to the list of those cases. Here the orderrecites that there was a dispute between the parties likely to cause a breachof the peace in regard to the possession of this colliery, and it was,accordingly, ordered that "neither party should exercise any act ofpossession there or do anything likely to lead to a criminal breach of thepeace." The result of that order has been practically an attachment of theproperty, and it was not until the 29th December that the successor of theMagistrate, who had passed the order under Section 144, realized the necessityfor proceedings under Section 145.

4. We have found in some cases that Magistrates pass ordersunder Sections 144 and 145 simultaneously. In the present case they were notpassed simultaneously but consecutively, and we would draw attention to theterms of Section 145, which, if properly applied, provide a perfect remedy forany disturbance of this description relating to the possession of land,inasmuch as Section 145 permits a Magistrate, who may find the case to be oneof emergency, to attach the subject of dispute pending his decision under thatsection. An order under Section 144, it should be remembered, can be passed exparte also only, in a case of emergency, but it remains in force only for twomonths, at the end of which time the cause of dispute and its probableconsequences will still remain. If, therefore, a Magistrate acts at once underSection 145, and, if necessary, attaches the land--the subject-matter indispute--he acts more effectively than by an order under Section 144, becausehe puts himself into a position to settle the dispute between the parties,which is likely to disturb the public peace.

5. Mr. Mehta, who appears for the petitioner, contends thatinasmuch as the Magistrate could not find actual possession at the time of hisorder under Sub-section (1) of Section 145, he was bound under Section 146 toattach the property. We cannot agree in this. The result would be to put out ofpossession one of the parties at all events, who had held possession at leastup to the date of the order under Section 144--an order which is declared to beonly of temporary operation, and which could be passed only on an emergency toprevent an imminent breach of the peace. It might so happen that, ifproceedings under Section 145 had not been taken, and when the order underSection 144 had, by lapse of time, ceased to have effect, the party inpossession would be entitled to exercise his lawful right. But on the argumentaddressed to us by reason of the proceedings under Section 145, he would not beliable to prove his possession by exercise of such rights at the time that suchproceedings were taken, because he had been restrained by the order underSection 144, and on this argument he would consequently be deprived of hispossession. Thus it would follow that, by reason of the intervention of theMagistrate to prevent a breach of the peace, lawful possession would bedisturbed. That could never be the intention of the Legislature. Section 146was, in our opinion, intended to apply to a case in which, on the evidencebefore him, a Magistrate could not find possession with either of the parties.It seems to us that the proper way of dealing with this case in interpretingthe Magistrates order is to hold that, whereas by reason of the operation ofhis order under Section 144 of the 10th November no evidence could be offeredto show the possession of either party from that date up to the 29th December,he was consequently obliged to ascertain the possession immediately before thisorder, and to regard his intervention as an attachment suspending the previouspossession whatever it might be, but that at the same time the former possessioncontinued, and, although the lawful exercise of its rights had been forbiddenfor a time, the possession had never ceased to exist. In this view we thinkthat the order of the Magistrate is correct and this rule must be discharged.

.

Joyanti Kumar Mookerjeevs. J.B. Middleton (20.04.1900 -CALHC)