AMENDMENT IN SECTION 145

 

OF THE Cr. P. C.

 

 

Report No. 31

 

Section 145 of the Criminal Procedure Code 1898 (Cr.P.C.) is designed to prevent a breach of peace over a dispute related to immovable property. An extract of the relevant provision is produced below:

 

“Section 145. Procedure where dispute concerning land, etc., is likely to cause breach of peace…(1) Whenever a District Magistrate, (or Sub-divisional Magistrate or an Executive Magistrate specially empowered by the Provincial Government in this behalf) is satisfied from a police-report or other information that a dispute likely to cause breach of the peace exists concerning any land or water or the boundaries thereof, within the local limits of his jurisdiction he shall make an order in writing, stating the grounds of being so satisfied, and requiring the parties concerned in such dispute to attend his Court in person or by pleader, within a time to be fixed by such Magistrate, and to put in written statements of their respective claims as respects the fact of actual possession of the subject of dispute.”

            (2)………………………

(3)………………………

            (4)………………………

 

            Provided that, if it appear 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:”

 

This proviso has been the cause of some concern, in particular the period prescribed for restoration of possession i.e.  “within two months next before the date of such order”, as it is has been interpreted differently by different courts. The ambiguity in the language and its somewhat strict interpretation by the courts, at times results in the negation of a vested right. The issue was examined by the Supreme Court in the case of Muhammad Shafiq v Abdul Hayee (1987 SCMR 1371).

 

The brief facts of the case are that one Muhammad Shafiq was dispossessed of his possession on 1.11.1984. On 27.12.1984, Muhammad Shafiq initiated proceedings U/S 145 of the Cr.P.C. before the IIlqa Magistrate by filing an application. The Illaqa Magistrate called report, which was submitted by the police on 13.1.1985. The police officer also submitted on 1.2.1985 a report that till the decision in the case the shop be sealed. The learned Magistrate passed the preliminary order on 18.2.1985 for sealing the shop. Subsequently, by order dated 20.7.1985 the ejectment order passed on 18.2.1985 was withdrawn and the property was restored to Messrs. Rahimullah, Abdul Hayee and others who were in physical possession of shop on the date the preliminary order was passed. The extract containing the reasons given by the learned Magistrate is reproduced as under:

 

“ On 1.11.1984 Rahimuddin, Abdul Hayee and others wrongfully and forcibly dispossessed Muhammad Shafiq son of Muhammad Rafiq and others. On 18.2.1985 the learned Magistrate passed the preliminary order. It shows that the preliminary order was passed 3 months and 17 days after the date Muhammad Shafiq was wrongfully dispossessed. Muhammad Shafiq dispossessed of the property moved the Court to take action under this section within two months of his dispossession but my learned predecessor did not pass a preliminary order until after the expiry of 2 months of such possession. I do not find myself on good legal ground to dilate on the way the proceedings were drawn under 145, Cr.P.C. by my learned predecessor. But I feel at this stage, that legally this Court, in these circumstances, has no power to restore possession to Muhammad Shafiq and others who were wrongfully and forcibly dispossessed of their Shop No. U/281A, Mochi Bazar, Rawalpindi, on 1.11.1984; whereas the preliminary order was passed on 18.2.1985. The record shall show that on 18.2.1985 when the preliminary order was passed and even 2 months preceding this order Rahimuddin and Abdul Hayee etc. were in physical possession of the Shop No. U/281A situated in Mochi Bazar, Rawalpindi.”

 

A revision was filed in the Court of the Sessions Judge, Rawalpindi which was accepted by the Additional Sessions Judge with the following observation:

 

“I hold that the impugned order is illegal to the extent that the petition was not filed within time. I hold that according to the above-said citation referred to above by the learned counsel for the petitioner, the application Ex. P.A. was filed within sixty days on 27.12.1984 from the date 1.11.1984, the date of forcible and illegal dispossession of the petitioners by the respondents.”

 

A petition U/S 561-A of the Cr.P.C. was filed by the respondents. The petition was allowed by the High Court setting aside the order of the Additional Sessions Judge and restoring the order of the Magistrate and came to the following conclusion:

 

“Inherent powers under section 561-A, Cr.P.C. are such available qua a revisional order, passed under section 439-A, Cr.P.C. as against any other order…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 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 of the Cr.P.C”.

 

As a result of the ambiguity in law, litigation reached up to the apex court i.e. Supreme Court and was finally decided in the year 1987. As a result, the poor litigants had to wait for long and spend huge amounts of money on litigation. Similar situations were confronted by the high courts in Pakistan and India. A full Bench of the Indian High Court in case Ganga Bux Singh v Sukhdin (AIR 1959 All 141) observed:

 

“From the nature of the provision it is clear that the Magistrate has been given this power primarily to preserve peace. The individual rights are affected only incidentally.

 

The nature of the inquiry is quasi-civil. It is an incursion by the criminal court in the jurisdiction of the civil Court. It is, therefore necessary that this incursion should be carefully circumscribed to the extent absolutely necessary discharging the function laid down on the Magistrate of preserving the peace. The provisions of S.145 of the Code of Criminal Procedure make that amply clear. The Magistrate does not enquire into the merits of the claim of the parties or even their right to possess the subject of the dispute. He is only concerned with the question as to who was in actual physical possession on the question as to who was in actual physical possession on the relevant date. This also indicates that the starting point of the proceedings must be the date when he was satisfied that an apprehension of a breach of the peace existed and not when he received the first information.

 

It is clear that the parties have no right to get their dispute adjudicated upon by the Magistrate. Even on the receipt of the application the Magistrate may not think any action necessary.  He may not take any action at all under S.145 of the Code of Criminal Procedure”.

 

As regards the language and the scope of the proviso under consideration, the Indian High Court observed:

 

“The proviso itself does not vest any right in the party interested. This being a discretionary provision it is only just and proper that the discretion should be circumscribed within narrow limits and once circumscribed, the limits have to be strictly observed. The Legislature in its wisdom vested only a limited discretion and we can see no reason for further extending the period for the exercise of this discretion by deeming that the preliminary order was passed on the date of the original application.”

 

The same provision was considered by the Lahore High Court in the case of Fazal Din v The State (1982 Cr.L.J. p.277) as under:

 

“The principles of equity or the doctrines of nunc pro tunc and actus curiae neminem gravabit, cannot be applied to an order passed by a Magistrate under section 145 (4). No doubt contrary view was taken by Madras High Court in the case of Chunchu Narayana and others v. Karrapati Kesappa AIR 1931 Mad. 500, but this view was dissented by the learned Judges of Orissa and Andhra High Court in cases reported in Gangadhar Singh and others v. Shyam Sunder Singh AIR 1958 Orissa 153 and Padmaraju Subba Raju and others v. Padmaraju Koneti Raju and another AIR 1995 Andhra 99. As far as the superior Courts of Pakistan are concerned, the view which was prevailed throughout is that the provisions of section 145, Cr.P.C. are to be construed literally. Reference may be made to Ch. Muhammad Siddiq v. Sahibzada Sahibyar Khan PLD 1963 W.P, B.J. 26; Nawabuddin v. Abdul Ghafoor 1968 P Cr. L J 35 and Mst Zohra Bai alias Fatima Sughar v The State and another 1973 P Cr. L J 317.”

 

The Supreme Court of Pakistan while disposing of the criminal appeal in Muhammad Shfiq v Abul Hayee (1987 SCMR 1371), discussed various case law on the subject and observed:

 

“It is important to note that Legislature’s intervention was considered necessary and was forthcoming in the form of an amended proviso in the following words in the Code of Criminal Procedure enacted in India in 1973--

 

“Provided that if it appears to the Magistrate that any party has been forcibly and wrongfully dispossessed within two month 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 this order under subsection  (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under subsection (1).”

 

It follows that notwithstanding the filing of the application within two months of dispossession if such dispossession not within two months of the order passed by the Magistrate under subsection (1) of follows section 145, Cr.P.C. restoration of possession cannot be ordered and an order to the contrary would not be in accordance with the provisions of the Code. In that situation the very first jurisdictional requirement for interference under section 561-A would be amply satisfied and the High Court was justified in invoking that power to correct the obvious legal error committed by the Additional Session Judge while interfering in revision with the order of the learned Magistrate. For the reason this appeal must be dismissed as without merit”.

 

It is, thus, obvious that the said proviso of section 145 of the Cr.PC is vague and liable to create mischief. It is therefore suggested that it may be amended on the lines of amendment carried out in India. This will save the litigants from avoidable hardships, expenses and delays and save the precious time of the courts. The existing and (proposed) amended versions are as under:

 

Existing:

“Provided that, if it appear 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 I in possession at such date”.

 

Proposed:

“Provided that if 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 subsection (1), he may treat the party so dispossessed as if that party had been in possession on the date of his order under sub section (1).”

 

Annex I

List of Reports

            1.         First Report on Fatal Accident Act, 1855

            2.         Second Report on Fatal Accident Act, 1855

            3.         Third Report on Establishment of Courts of Qazis Ordinance,1981

            4.         Fourth Report on Law of Evidence

            5.         Fifth Report on Rent Restriction Laws and Draft Ordinance

            6.         Sixth Report - re: the Proposed Draft "Law of Evidence" Prepared by the Council of Islamic Ideology

            7.         Seventh Report on Elimination of False Evidence from the Judicial System in the Country

            8.         Eighth Report on Elimination of False Evidence

            9.         Ninth Report on a Reference Received from the Federal Government on the Proposed Ordinance re: Law of Evidence

            10.       Tenth Report on Qisas and Diyat

            11.       Filling a Legal Vacuum

            12.       Reformation of Family Laws

            13.       Reformation and Modernization of Service Laws

            14.       Report on Rent Restriction Laws

            15.       Enhancing the Powers of Wafaqi Mohtasib

            16.       Scheme for the Redressal of Public Complaints

            17.       Amendment in the Code of Criminal Procedure

            18.       Extension of Jurisdiction of Service Tribunals to Employees of Statutory Corporations

            19.       Eradication of 'QABZA GROUP' Activities

            20.       Prevention of Unfair Means in Examination

            21.       Improving the Performance of Pakistan Law Commission

            22.       Report on Criminal Justice System

23.              Report on Jail Reform

24.              Reformation and Modernisation of Service Laws (Part-II)

25.              The Role of Pakistan Bar Council in the Promotion of Human Rights

26.              Administrative Procedures Act for the Federal Government of Pakistan

 

Annex II

Pending Projects

1.         Law of Nazar-ul-Mazalim (giving special powers to existing courts for handling tort cases)

2.         Proposal for Providing an Interest-free Finance to the Corporate Sector

3.         Amendments in the Legal Practitioners and Bar Councils Act 1973

4.         Reformation and Modernisation of the Civil Service (Amendments to the Civil Servants Act 1973, the Service Tribunal Act 1973, The Public Service Commission Ordinance 1977 and the Rules made thereunder)

5.         Amendments in Contempt Law

6.         Legislation for Regulating Domestic Servants

7.         Reformation of Laws Relating to Children to bring them in conformity with the International Convention on the Rights of the Child 1989, including issues such as Birth Registration, Health Care, Education, Child Labour & Juvenile Justice System.

8.         Amendments in Hudood Laws

9.         Reformation of Personal Law of the Christian Community Pertaining to Inheritance and Family Matters

10.       Protection and Welfare of Insane/Lunatic Persons

11.       Modernisation of Transportation Laws

12.       Reformation of Electoral Laws (Election Commission, Political Parties Act, Representation of People Act, Proportional Representation System, Representation of Women in Elective Bodies, etc)

13.       Amendments in Laws/ Rules Relating to Forests

14.       Measures for Expeditious Disposal of Civil and Criminal Cases

15.       Amendment in Qanun-e-Shahadat Order 1984

16.       Reformation of Labour Laws

17.       Brick-Kiln Labour (Conditions of Service) Act

18.       Amendments to Registration Act 1908

19.       Code of Conduct for Judges of Subordinate Judiciary

20.       Amendments in Pre-emption Law

21.       Amendments in Qisas and Diyat Law

22.       Proposal for a New Taxation System               

23.       Amendments in Police Act 1861

24.       Unification/Codification of Hindu Personal Law Relating to Matrimonial Affairs and Inheritance

25.       Reformation of Cantonment Act/Rules

26.       Reviewing Discriminatory Legislation Pertaining to Women

27.       Amendments in Muslim Family Law Ordinance 1961

28.       Amendment in Juvenile Smoking Ordinance 1959

29.              Amendment to Child Marriage Restraint Act 1929

30.       Proposed Legislation for Regulating the Business of Motor Vehicle Dealers and Real Estate Agents.

31.       Law of Accountability

32.       Law of Freedom of Information

33.       Law on Regulating Shelter Home/Darul Aman

34.       Amendment in the Court Fees Act 1870

35.              Measures to Reduce Road Accidents (Proposed Amendment in Motor Vehicle Ordinance 1965)

36.              Amendments in the Arbitration Act 1940

37.              Scheme for the Protection of Human Rights and Freedoms

38.              Scheme for Provision of Free Legal Aid

39.              Scheme for Disposal of Cases through Alternative Means of Dispute Resolution

40.              Proposed Draft on Discretion (Abuse of Powers) Restraint Act

41.              Amendments in Fatal Accidents Act 1855

42.              Amendments in Canal and Drainage Act 1873

43.              Amendments in Children (Pledging of Labour) Act 1933

44.              Amendment in Companies Ordinance 1984

45.              Amendments in Conciliation Courts Ordinance 1961 (to ensure the expeditious disposal of cases through conciliation/mediation)

46.              Amendment in Zakat and Ushr Ordinance to remove anomalies/contradiction therefrom.