1. This is a reference by the District Magistrate of Bijapur asking us to cancel an order passed by the Sub-Divisional Magistrate. S.D. under Section 147, Criminal Procedure Code. The order in question arose out of a dispute as to the right of the Kurvinshetti Jadar residents of the village of Girsagar to take a car in procession along a public road to a temple. The Banajiger residents contend that it should not be allowed to go past their houses. An application was made by the first named party to the Sub-Divisional Magistrate to order the other side not to interfere with the exercise of their alleged right, The Sub-Divisional Magistrate thereupon issued a preliminary order under Section 147, Sub-section (1), of the Code, and after hearing both the parties and the evidence led by them, he passed an order on February 26, 1925, prohibiting the Kurvinshetti Jadara from exercising their alleged right on the ground that they had not exercised it in the preceding year. The period in which this alteration should take place is from the first day to the fifth day after Shivratri Amavasya day. The Sub-Divisional Magistrate's order shows that evidence was given that the oar procession did in fact take place during the preceding year but that this was on the ninth day after Shivratri day and not therefore between the first and the fifth day after that date. Accordingly he held that the applicants had failed to satisfy the condition laid down in the proviso to Sub-section (2) of Section 147, which says no order prohibiting interference with the exercise of the alleged right shall be made, unless where the right is exercisable only at particular seasons or on particular occasions, the right has been exercised during the last of such seasons or occasions before the institution of the inquiry. Mr. Desai for the Kunvinshetti residents has drawn our attention to documentary evidence on record, which shows that the reason why the car was not drawn between the first and the fifth day after Shivratri was obstruction by the other party. There is a petition to the District Magistrate complaining of this obstruction and mentioning that in consequence they desisted from the intended procession. The District Magistrate therefore gave an order to the local Sub-Inspector of Police to prevent any obstruction to the petitioners by the opponents at this procession. This order is dated March 12, 1924, and presumably reached the Sub-Inspector a day or two later. The car was consequently not drawn in procession till March 14, being the ninth day after Shivratri. It is quite true that, if a very strict construction is given to the proviso in question, the mere fact that the oar was not drawn within the proper period of five days prevents an order being passed in favour of the petitioners. But there can, I think, be no doubt that such a result could not have been in-tended by the legislature, and should not be accepted by this Court. The right would have been exercised during the last of the proper seasons before the institution of the inquiry, but for the obstruction of the opponents. The petitioners acted in a manner which deserves our approval, in desisting from the procession, which might have led to a breach of the peace, and promptly going to the proper authorities to obtain a removal of this obstruction. In the circumstances the non-exercise of the right within the proper period was due to the circumstances beyond their control, whereas the proviso obviously contemplates a non-exercise for reasons within the control of the persons claiming the right, Therefore in my opinion the Sub-Divisional Magistrate was not justified in holding that the right had not been exercised during the preceding year so as to bring the case within the proviso to sub Section (2), and that appears to me to be sufficient ground for cancelling his order in favour of the opponents Though the occasion for an order has now passed and the dispute is suspended till March next year, on the other hand, if the order is allowed to stand, it will unduly prejudice the petitioners in any future proceedings of the same kind, I think, therefore, there is good ground for our interference.
2. Again the mere fact that the Magistrate, if his view was right, could not pass an order in favour of the petitioners under Sub-section (2) affords no reason why he should have passed an order in favour of the opponents, prohibiting the petitioners from any exercise of their alleged right. That is an order under Sub-section (3), which he could only pass, if it appeared to him that the petitioners' right did not exist Obviously the mere fact that they did not exercise the right during the preceding year is not sufficient to show that the right does not exist, and it only prevents the Magistrate from issuing an order under Sub-section (2) supporting the alleged right.
3. The District Magistrate in the reference to this Court has submitted that in any case the Sub-Divisional Magistrate could not legally pass an order in this case under Section 147 of the Code, and he cites a decision of this Court in Quaen-Empress v. Madhavdas (1891) Unrep. Cr. C. 548. If, however, that case is looked at, it is obvious that this Court did not say that in no case could an order prohibiting a procession along a street be passed under Section 147, Criminal Procedure Code. All that it did say was that in that particular case the Magistrate had not come to any finding as to the right in dispute, and therefore there was no foundation for the order that he purported to pass under Section 147. It is not now necessary for us to decide whether such an order can or cannot be passed under Section 147, but as at present advised I can ate no sufficient reason for holding that a right of the kind in question is not a right of user of land, which falls within the scope of Sub-section (1) of Section 147, Criminal Procedure Code.
4. I would, therefore, cancel the order of the Sub Divisional Magistrate prohibiting the Kurvinwhetti Jadars from exercising their alleged right. It is not necessary for us to substitute any other order as the occasion has passed; but this is of course without prejudice to the petitioners having resort to any remedies which are legally open to them under the Criminal Procedure Code, in order to remove any threatened obstruction to the car procession next year or any other future years.
5. I agree. The Sub-Divisional Magistrate's order should in my opinion be set aside on three grounds :- (1) The delay of a few days in exercising the right last year due to the obstruction of the opponents and the petitioners' recourse of the District Magistrate is not the absence of the exercise contemplated in the proviso. (2) The order of the Magistrate goes too far; it not merely refuses the petitioners' application but without a corresponding application on the part of of the opponents gives an order in their favour. (3) Apart from the allegation of prejudice to their dharma the opponents had not shown how they being Hindus and possibly Shaivas maintain a right of obstructing merely because their houses lie along a certain portion of the route of the procession.