Patna High Court
Trijogi Narayan Singh And Ors. vs Kamta Prasad And Anr. on 21 September, 1954
Equivalent citations: 1955(3)BLJR49, 1955CRILJ977, AIR 1955 PATNA 265
ORDER Banerji, J.
1. This application is directed against an Order of a 1st Class Magistrate of Bhabua prohibiting the petitioners from interfering with the right of way claimed by the opposite party over certain plots. It appears there is a well in plot No. 801 and the opposite party claimed a right of way over the disputed plots to go and fetch water from the said well.
2. Mr. Hafinandan Singh, appearing on behalf of the petitioners, has urged two points against the order. His first contention is that, on the admission of witness No. 2 for the opposite party, the path through the disputed plots had been closed since July 1951 and, as the enquiry under Section 147, Criminal P. C., was instituted on 15-11-1951, when both parties showed cause, the order of the learned Magistrate was without jurisdiction as, according to the proviso to Sub-section (2) of Section 147, the right of way was, admittedly, not exercised within three months from that date. It appears from the order-sheet of this case that even on 8-8-1951, the Sub-divisional Officer was waiting for the report of the police with respect to this dispute between the parties. Therefore, it can fairly be presumed that the learned Subdivisional Officer had already acted on the dispute regarding the right of way claimed by the opposke party and had asked the police to enquire and report about the matter. It would appear, therefore, that, as the matter was under enquiry, the opposite party were not in a position then to exercise their right of way which they claimed.
In 'Sohan Lohar v. Jiutupadhya', AIR 1930 Pat 291 (A), Wort J., depending on the decision in
-- 'Ram Chandra Acharjee v. Aditya Chandra', AIR 1926 Cal 1051 (B), held that the enquiry contemplated by the proviso to Sub-section (2) is the enquiry referred to in Sub-section (1) which means the date on which the parties are heard and evidence is taken and adjudicated upon. If this decision is accepted as laying down a correct proposition of law, then the bar of limitation of three months laid down in the proviso to Sub-section (2) woud refer back to 5-10-1951, and in any case not earlier because I find from the order-sheet that it was on 5-12-1951, that the learned Magistrate examined the first batch of witnesses. In that case, there can hardly be any doubt that the order of the learned Magistrate would be without jurisdiction.
In 'Bhagawan Swain v. Mathuri Swain', AIR 1930 Pat 349 (C), however, a Division Bench of this Court dissented from that view, and it was held that the words "institution of the enquiry" in the proviso to Sub-section (2) of Section 147 did not mean the date of the drawing up of the formal proceedings under Section 147, but it meant the date on which the complainant first brought his grievance to the notice of the Magistrate either directly or indirectly through the Police and the Magistrate took action with a view to enquiring into the allegations although that enquiry was merely preliminary to the eventual institution of a formal proceeding. Their Lordships relied on the decision in -- 'Rama Nath Basu Choudhury v. Sarada Prosad', 44 Cal LJ 214 (D), and Scroope J., while agreeing with the views expressed by Courtney-Terrell C. J., pointed out as follows:
"The proviso is one relating to limitation, and it would be very unusual to make, as it were, limitation run backwards instead of forward, that is to say, from the date on which the Court draws up formal proceedings instead. of from the date on which the complainant brings his grievance to the notice of the Court either directly or indirectly through the police."
It was observed in the Calcutta case that, if the institution of the enquiry meant the date when the formal proceedings were drawn up under the section, this interpretation would make its working difficult. It was observed by Courtney-Terrell C.J. that, if the words "institution of the inquiry" meant the date of the ultimate order, it would be impossible for the party who had alleged that he had exercised the right to be able to prove that he had done so within three months from the date of the order. The proceeding in this case was actually drawn up on 31-10-1951, and, as already stated, the first batch of witnesses was examined on 5-12-1951, but the grievance of the opposite party had been brought before 8-8-1951, and the Magistrate had already taken action and directed the Police to enquire into the matter.
Therefore, the learned Magistrate is not deprived of his jurisdiction to enquire into this proceeding because the path through the disputed plots had been closed by the petitioners in July 1951. In -- 'Kinei Majhi v. Gobind PrasadSingh', AIR 1936 Pat 44 (E), another Division Bench of this Court held that the date of the institution of the enquiry as provided in Section 147, Criminal P. C., is the date when the likelihood of a breach of the peace was brought to the notice of the Magistrate. In view of these two decisions, it cannot but be held that the learned Magistrate had jurisdiction to pass the order Under Section 147, Criminal P. C.
3. It is next submitted by Mr. Singh that the order passed by the learned Magistrate does not satisfy the requirements of the proviso to Sub-section (2) of Section 147, Criminal P. C, Sub-section (2) with the proviso is in the following terms;
"(2) If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right: Provided that no such order shall be made where the right is exercisable at all times of the year., unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution."
The proviso enjoins a finding that the party claiming the right, when such right is exercisable at all times of the year, had exercised it within three months next before the institution of the enquiry and, when the -right is exercisable at particular seasons or on particular occasions, such right had been exercised during the last season or on the last of such occasions, respectively.
The finding of the learned Magistrate in this case is in the following words:
"Taking the entire evidence into consideration I am of the opinion that the balance of the evidence is in favour of the 1st party and that the right: of "Hasta" as claimed by the 1st party exists and I hereby order prohibiting any interference into the exercise of this right."
The right claimed in this case is one which was exercisable at all times of the years and it was the duty of the. learned Magistrate to give a finding to the effect that this right was exercised within three months prior to the date when the learned Subdivisional Officer heard the grievance of the opposite party and took action on the allegations by directing an enquiry by the Police. The direction given in the proviso appears to be mandatory, and there was hardly any justification for the Magistrate to overlook this proviso altogether and omit to give such a finding.
It has been laid down in -- 'Guru Prosad Dhar v. Lachman Ram Ghose', 19 Ind Cas 959 (I) (Cal) (F), that an order under Section 147, Criminal P. C., is without jurisdiction if it is made in the absence of any finding that the right was exercised within three months anterior to the enquiry. In -- 'Babu Khan v. Raj Kishore Pershad Narayan Singh', AIR 1919 Pat 477 (G), his Lordship Das J., relied on this case of the Calcutta High Court and held that, in the absence of such a finding, the order was without jurisdiction. The same view was taken by Sir Jwala Prasad J., in -- 'Grant v. Padarath Jha', AIR 1921 Pat 486 (H), and by Kulwant Sahay J., in -- 'Sirkawal Singh v. Bhuja Singh', AIR 1924 Pat 784 (I), following 'AIR 1921 Pat 486 (H)'. He held that a final order under Section 147, Criminal P, C., cannot be maintained in the absence of a finding that the right had been exercised within the period as specified. In an unreported decision --
-- 'Ramnagina Singh v. Debi Pd. Keshan', Criminal Ref. No. 109 of 1953, D/- 30-3-1954 (Pat) (J), Das J., remanded a case of this nature as there was no finding in compliance with the proviso to Sub-section (2) Section 147, Criminal P. C.
4. On behalf of the opposite party, Mr. Tarkeshwar Nath relics on two decisions, namely, 'In the matter of Pasupathi Nath Bose v. Nanda Lal Bose', 5 Cal WN 67 (K), and -- 'Hamir P & D Co. v. Suresh Chandra Sarkar', AIR 1926 Pat 348 (L). I do not think, however, that these decisions are any authority for the proposition that a Magistrate passing an order under Section 147, Criminal P. C., is not required to find exercise of these rights within the time as given in the proviso. In the Calcutta .case the objection raised was that the order of the Magistrate was bad because he had not found the right in dispute to have been exercised within either of the periods mentioned in Section 147. This objection was negatived by their Lordships and, after stating what the Magistrate had said about the uninterrupted use of water for 20 years, they held that it was sufficient finding for the purposes of that case.
In the present proceeding, the Magistrate has, in his final order, quoted above indeed, found the existence of the right of way as claimed by the first party, but there is no sentence or phrase from which an inference can be drawn that he meant that the right of way had been exercised within three months from the date of institution of the enquiry. In 'AIR 1919 Pat 477 (G)', which was a case of exercise of a right at particular seasons, Das J., observed that the decision in '5 Cal WN 67 (K)', was not to the point. I do not think the Legislature made any distinction with respect to the findings about the limitations specified in the proviso of those rights which could be exercised throughout the year or at particular seasons or on particular occasions.
There is virtually no difference between the principles laid down in the case of '19 Ind Cas 959 (1) (Cal) (F)', and '5 Cal WN 67 (K)': In the case of AIR 1926 Pat 348 (L)', it was not the case of any one that the learned Magistrate had omitted to give a finding as enjoined in the proviso, but the argument advanced was that there was no evidence to show any user of the road in question within three months prior to the date of the proceedings. It was then pointed out by his Lordship Buknill J., that, although there was no specific instance of user proved within that period, there was a great deal of evidence of continuous general user up to the date when the right was interrupted.
5. The present case has, therefore, to go back for enabling the Magistrate to give a distinct finding as to whether the right of way had been exercised within three months before the institution of the enquiry. Mr. Harinandan Sirigh has asked me to allow the application and to set aside the order as the same is bad in law. He has stressed that an order of remand is not required in the facts and circumstances of this case. The matter relates to a right of way to take water from a well and this right affects the entire community living in that village. It is not proper in a case of this nature to postpone the issue to the hazards of a future proceeding.
6. In the result, therefore, the application is allowed and the rule made absolute. The case is sent back, on remand for a decision in accordance with law in the light of what has been stated above.