Lakshmi Narain, J.C.
1. The learned Sessions Judge, Agartala Shri P.R. Das Gupta forwarded the records of his Court's Criminal motion No. 84 of 1951 to this Court under Section 438, Cr.p.c. with no definite recommendation but it appears from his order dated 28.9.51 that he has come to the conclusion that the order in question passed by the Magistrate is illegal and wants it to be quashed. The learned Sessions Judge ought to have forwarded this reference on a prescribed form and In a proper manner.
2. A point raised by the learned Counsel for the Opposite party who has appeared in this reference is that the aggrieved party ought to have recourse under Sub-section (4) of Section 144, Cr.P.C. and not by way of revision. That could because but if he has not availed himself of the remedy provided by Sub-section (4) above, it is no ground for refusing to interfere in revision.
3. On a petition under Section 144, Cr.P.C. the learned Magistrate went to the spot and made local inspection and enquiry. He found the opposite party to have encroached upon a portion of the land inside the homestead of the petitioner On that portion the other party was erecting a wall in contravention to the agreement already reached between them. The Magistrate apprehended breach of the peace and disturbance. In view of that he ordered to remove the structure of the wall Immediately. The order under Section 144, Cr.P.C. was to remain in force.
4. I find that the order of the learned Magistrate was not without jurisdiction. Such an order could be passed under the circumstances of the case.
5. The above view gets support from Lachmi Narayan v. Nand kishore Singh AIR 1940 Pat 57 (A) where it is held that
Section 144 not only empowers a Magistrate to direct a person to abstain from a certain act but also empowers a Magistrate to pass a mandatory order on persons in possession of property, if it is necessary in the opinion of the Magistrate that such action should be taken for the purpose enumerated in the Section-Balaram Dey v. Pran Ram AIR 1937 Cal 406 (B) Relied on.
In this case the Magistrate had passed an order for the removal of the Bundh in question.
6. The learned Magistrate, therefore, had jurisdiction to direct the petitioners to remove structure of the wall as Section 144 empowers the Magistrate to direct a person to take certain order with certain property in his possession.
7. This reference is, therefore, rejected.