Patna High Court
Misri Chaudhury And Ors. vs Narsingh Prasad Tewari on 21 February, 1921
Equivalent citations: 62IND. CAS.179, AIR 1921 PATNA 333
JUDGMENT Jwala Prasad, J.
1. This is an application against the order of the Magistrate under Section 147 of the Code of Criminal Procedure, dated the 22nd November 1920.
2. Three objections have been raised to the validity of the order : (1) that the proceeding drawn up in the case was illegal and did not confer any jurisdiction upon the Deputy Magistrate who decided the case, (2) that the proceeding was vague and contravened the requirement of Section 147 and as such was illegal, irregular and without jurisdiction, and (3) that the order of the Magistrate is vague, illegal and inconsistent with his own finding.
3. As to the first, the proceeding was drawn up by the Sub Divisonal Magistrate directing the parties to "appear before Syed Mohammad Yakub on the 28th August 1920."
4. Section 147 as well as Section 145 of the Code clearly requires that the Magistrate drawing up the proceeding shall require the parties concerned "to attend his Court."
5. It was, therefore, illegal for the Sub-Divisional Magistrate to direst the parties to appear before another Magistrate, Mr. Mohammad Yakub. The order is, therefore, against the clear direction in the Code and cannot be cured by any irregularity (sic), Mr. Pal replies to this by citing the case of Gurudas Nag v. Gaganendra Nath Tagore 2 C.L.J. 614 : 3 Cr. L.J. 83, where it was held that a proceeding under Section 145 is a criminal case and a Migistrate has power to transfer it under Sections 192 and 528 of the Code of Criminal Procedure. It was further held that the transfer, even if invalid, was cured by Section 529, Clause (f). The ruling has no application inasmuch, as the Sub-Divisional Magistrate did not transfer the ease expressly or by implication to Mr. Yakub.
6. The second and the third grounds may be taken up together. They are also substantial, inasmuch as the proceeding stated that a dispute existed "concerning the right of use of water from a danr, passage of water, called Digani Danr, bearing No. 623, which flaws from the Barno river and passes through Neyamatpur Behma within the local limits of my jurisdiction."
7. From the judgment of the Court below it is clear that the Digani Danr No. 626 belongs exclusively to the second party and Behna Danr No. 776 belongs to the first party. The Deha Danr of the first party runs north of the Digani Danr of the second party. The first party has another danr south of No. 626, which runs along Nos. 983 and 611. It meets the second party's danr No. 626 at a particular point. The first party claims to take the waters of his danrs Nos. 983 and 611 through the danr of the 2nd party Nos. 626 into his danr No. 776. It is not disputed that the water in No. 626 belongs exclusively to the second party. The dispute between the parties was not, therefore, clearly set out in the proceeding. The result was obviously prejudicial inasmuch as, although the Magistrate held that the first party had no right in the main danr No. 626 of the second party, yet he passed the order that "the first party shall continue to take the water passing through No. 626 into No. 776."
8. The order of the Magistrate must, therefore, be set aside. If the Magistrate thinks that there is still danger of a breach of the peace, he will take proper action under the law.