The next step for the Magistrate is to make an inquiry as to possession. He shall [irrespective of the merits of the case] peruse the statements, documents and affidavits, if any, so put in hear the parties and conclude the inquiry, as far as may be practicable within two months from the date of the appearance of the parties before him, and if possible, decide whether any and which of the parties was at the date of the initial order passed under Section 145(1) in possession of the said subject.
If, however, it appears to the Magistrate, that any party has been forcibly and wrongfully dispossessed within two months next before the date on which the report of a police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (1), he may treat that the party so dispossessed as if he had been in possession on the date of his order under sub-section (1).
The expression ‘peruse’ in Section 145(4) means “to read carefully or critically; to examine closely as if by reading.” No particular manner in which the documents, statements or affidavits are to be perused is prescribed by law. The Magistrate acting judicially in summary enquiry, has to make an overall assessment of the evidentiary value of the material before him, bearing in mind that he does not ignore the assertions of the parties as made before him.
It may be that in a particular case he does not write as exhaustive a judgment as one would expect, but from this alone it cannot be inferred that he has not applied his mind judicially. It is the cumulative effect of the entire evidence that has to be examined and considered.
[Niranjan Singh Sunder Singh and others v. Kasturi Lai and others, A.I.R. 1971 Pun. 4],
The Magistrate should bear in mind that the report of a police officer not based on his personal knowledge cannot be read as evidence in the case. [Pritam Singh v. Ranjit Singh, A.I.R. 1972 Raj. 59],
As the preliminary order is to be passed only after the Magistrate is satisfied as to the existence of a dispute likely to cause a breach of the peace, it must necessarily refer to the time and date when the Magistrate is so satisfied and cannot relate to any earlier time or date when the Magistrate had not yet been so satisfied.
Even after the police report is sent to the Magistrate, the Magistrate may require other information before that he feels satisfied that a dispute likely to cause a breach of the peace exists and passes a preliminary order in that behalf. It is the preliminary order alone that indicates the time when the necessary satisfaction was reached by the Magistrate. It is not possible to lay down as a proposition of law that the preliminary order should, in all cases immediately follow the receipt of the police report or the other information in the Magistrate’s court.
That some time elapsed between the receipt of the police report or the other information and the passing of the preliminary order cannot therefore be necessarily attributed to the delay on the part of the court or to its fault.
[Stale v. Ramjivan Kaluram and another, A.I.R. 1962 Bom. 8],
If any party shows that no dispute as aforesaid exists or has existed, the Magistrate shall cancel his initial order and stay all further proceedings thereon, but subject to such cancellation the order of the Magistrate initially passed shall be final. [Section 145 (5)
If the Magistrate decides that one of the parties was or should be treated as being in possession of the said subject, he shall issue an order declaring such party to be entitled in possession thereof until evicted there from in due course of law, i.e., until the question of title is decided in a civil court.
The Magistrate shall further forbid all disturbances of such possession until such eviction and when a party has forcibly and wrongfully been dispossessed within two months next before the date on which the report of police officer or other information was received by the Magistrate, or after that date and before the date of his order under sub-section (i), he may restore possession to it. [Section 145 (6)]
When a party to any such proceeding dies, the Magistrate may cause the legal representative of the deceased party to be made a party to the proceeding and shall thereupon continue the inquiry. If any question arises as to who the legal representative of a deceased party for the purposes of such proceeding is, all persons claiming to be representatives of the deceased party shall be made parties thereof. [Section 145(7)]
If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute, is subject to speedy and natural decay, he may make an order for its custody or sale and upon the completion of the inquiry make suitable order for the disposal of such property or the sale proceeds thereof. [Section 145 (8)]
The Magistrate may, if he thinks fit, at any stage of the proceedings under Section 145 on the application of either party, issue summons to any witness directing him to attend or to produce any document or thing. [Section 145 (9)]
If the Magistrate at any time after making the order under sub-section (1) of Section 145 considers the case to be one of emergency or decides that none of the parties was then in such possession, or is unable to decide as to which of them was then in such possession of the subject of dispute, he may attach the subject of dispute, until a competent court has determined the rights of the parties thereto with regard to the person entitled to the possession thereof.
If there is no longer any likelihood of a breach of the peace in regard to the subject of dispute, the Magistrate concerned may withdraw the attachment at any time. [Section 146(1)}
When the Magistrate attaches the subject of dispute, he may, if no receiver in relation to such subject of dispute has been appointed by any civil court, make such arrangements as he considers proper for looking after the property or, if he thinks fit, appoint a receiver thereof, who shall have, subject to the control of the Magistrate, all the powers of a receiver appointed under the Code of Civil Procedure, 1908.
In the event of a receiver being subsequently appointed in relation to the subject of dispute of any civil court, the Magistrate shall order the receiver appointed by him to hand over the possession of the subject of dispute to the receiver appointed by the Civil Court and shall thereafter discharge the receiver appointed by him, and may make such other incidental or consequential orders as may be just. [Section 146 (2)]
Section 145 has been enacted with the object of preventing breach of peace and not with a view in giving one party an advantage over another by driving the other to prove his title in civil court. The section can be invoked in case where the contesting parties are not in actual possession at the time of the preliminary orders but have bona fide rights to succeed to the property and there is a serious danger of breach of peace if action under the section is not taken.
The inquiry under the section is in its nature a summary one. The proceedings are only temporary, designed, to prevent a breach of the peace and are subject to the decision of the civil courts. The section is concerned with the persons in actual possession and persons who are likely to create a breach of peace.
It has been enacted with the object of ascertaining who was in possession of the property either on the date on which the breach was likely to occur, or where one party has been forcibly and wrongfully dispossessed, within two months next before the date on which the report of a police officer or other information was received by the Magistrate. The Magistrate, being concerned only with the question of actual possession must determine the question irrespective of the right to possession.
Law recognizes remedies both on the basis of title and also possessory ones. A person having a title to the property or possession of the same can go to a civil court and have the question determined properly and effectively there irrespective of what the findings of the Magistrate under Section 145, Criminal Procedure Code, be.
The Magistrate under Section 145 is not called upon to settle any question of title or even of possession as may affect the rights of a party in a civil court. He just settles the matter temporarily as to who is in actual physical possession on a particular date. No doubt, he is to give a finding as to possession and will not recognize the possession of a trespasser who has forcibly taken the same by ousting another in an unlawful manner. At the same time, it is just a sort of police action and no finality can be given in a civil court to the findings of the Magistrate in regard to possession. I
(Niranjan Singh Sunder Singh v. Kasturi Lai, A.I.R. 1971 Punjab and Haryana 4)].