1. Punjabrao Laxmanrao being aggrieved by the order passed in criminal revision application by the Additional District Magistrate, Amravati, who confirmed the order passed by the Sub-Divisional Magistrate, Daryapur, in a proceeding under Section 147, Criminal Procedure Code, has come here in revision. On a report from the Station House Officer that there was an apprehension of breach of peace between two parties over the right to take water from a well, the Sub-Divisional Magistrate passed a preliminary order under Section 145, Criminal Procedure Code, on July 7, 1969. Later, it was found out by the Sub-Divisional Magistrate during the course of the inquiry that the dispute related to the right of taking water. Therefore, he amended the preliminary order purporting it to be made under Section 147, Criminal Procedure Code. The parties were directed to file affidavits and documents in support of their respective claims. No evidence was recorded in the case. The learned Sub-Divisional Magistrate, relying on the affidavits and the documents, passed a final order under Section 147(2), Criminal Procedure Code, prohibiting the applicant here to interfere in exercise of the right of the other party, who is the opponent here, to fetch water for irrigation purposes from the impugned well situated in the field belonging to the applicant.
2. The order passed by the Sub-Divisional Magistrate was confirmed by the Additional District Magistrate. The learned Additional District Magistrate did not also consider the point whether in a proceeding under Section 147, Criminal Procedure Code, regular evidence was to be recorded or was not to be recorded.
3. The only point that is raised here by the learned advocate Mr. Saranjame for the applicant is that the proceedings under Section 147, Criminal Procedure Code, were disposed of although no evidence was recorded. On the other hand, the learned advocate for the opponent Mr. Mandlekar says that a civil suit has already been filed by the applicant Punjabrao and, therefore, we need not, now, at this stage of the proceedings look into the legality or the illegality of the proceedings before the Sub-Divisional Magistrate and take a technical view. I cannot accept the contention of Mr. Mandlekar because, if the proceedings were vitiated as contended by the learned advocate for the applicant, then the order passed by the trial Court will have to be set aside.
4. Under Section 147, Criminal Procedure Code, whenever any District Magistrate or Sub-Divisional Magistrate is satisfied from a police-report or other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water as explained in Section 145, Sub-section (2), whether such right be claimed as an easement or otherwise, he may make an order in writing stating the reasons of his being so satisfied and requiring the parties concerned in such dispute to attend the 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 and shall thereafter inquire into the matter in the manner hereinafter provided. This is now the provision after an amendment by Act No. XXVI of 1955. Before the amendment by Act No. XXVI of 1955, the following words 'in the manner provided in Section 145 and. the provision of that section shall, as far as may be, be applicable in the case of such inquiry' were in place of the present wordy 'in the manner hereinafter provided'. Therefore, by the Amendment of 1955, the procedure for inquiry under Section 147, Criminal Procedure Code, is changed. That procedure is specifically laid down in Section 147(1A), The procedure for inquiry under Section 145 was also changed by this Amendment Act XXVI of 1955 by altering Sub-section (4) of Section 145 of the Criminal Procedure Code. Under the amended Section 145(d), the Magistrate can rely only on the statements, documents and affidavits put in by the parties for the purpose of deciding the question of possession. But by the Amending Act, as we have seen, the procedure for inquiry under Section 147, Criminal Procedure Code, is specifically laid down in Sub-section (1A). Sub-section (1A) is as follows:
Tile Magistrate shall then peruse the statements so put in, hour the parties, receive all such evidence as may be produced by them respectively, consider the effect of such evidence, take such further evidence, if any, as he thinks necessary and, if possible, decide whether such right exists and the provisions of Section 145 shall, as far as may be, be applicable in the ease of such inquiry.
5. It is clearly laid down in the above provision that the Magistrate shall not only peruse the statements of the parties but also hoar the parties and also receive all such evidence as may be produced by them and consider the effect of such evidence and take such further evidence as he thinks necessary and then decide the question of right of water or land. Therefore, by the Amending Act XXVI of 1955, the Magistrate has to follow the procedure as laid down, under Sub-section (1A). Under Sub-section (1A), the Magistrate cannot rely upon the affidavits only but has to receive all such evidence and also take such further evidence for the purposes of finding out the rights of parties. I, therefore, think that the learned Sub-Divisional Magistrate has committed an error in only relying on the affidavits of the parties and not taking any evidence as is laid down under Section 147(1A), Criminal Procedure Code. The learned District Magistrate, who heard the revision application, also fell into an error in relying upon such evidence. It appears to me, therefore, that the proceedings are vitiated by this illegality.
6. Under Section 147, Criminal Procedure Code, where a party claims a right and that right is in dispute, the Magistrate is required as far as. possible to decide whether the right claimed, exists. Therefore, the Magistrate, in order to find. out the existence of the right claimed, has to make a prima facie inquiry about the rights which are claimed by either parties. Such an inquiry is contemplated by Section 147 and a specific procedure is laid down under a. 147(1A) of the Criminal Procedure Code. That is, however, not the case with proceedings under Section 145, Criminal Procedure Code. Merits of the claims are not to be seen under Section 145. Therefore, the proceedings under Section 147, Criminal Procedure Code, cannot obviously be disposed of by affidavits alone. In this case, therefore, the proceedings are vitiated. I have, therefore, no other alternative but to set aside the order passed by the trial Court.
7. I, therefore, set aside the order passed by the learned Additional District Magistrate who confirmed the order passed by the Sub-Divisional Magistrate and send back the record and the proceedings for re-trial according to law.