1. This is an application for revision of an order passed by the Additional City Magistrate, Lucknow, under Section 147, Criminal P. 0.
2. On 29th January 1947, Ch. Muehtaq Ahmad made an application before the City Magistrate of Lucknow alleging that his wife and his mother-in-law owned two houses in mohalla Goluganj, and complaining that the way by which access was had to these houses, and the drain by which water from these houses flowed into the main drain on the public road were being obstructed by the present petitioners, Qamruddin Hasan, Shamshuddin Hasan and Waziruddin Hasan. He further alleged that when a protest was made against the obstruction the present petitioners threatened to use violence and accordingly there was an apprehension of a breach of peaco. Ha prayed for proceedings under Section 147 being taken in. respect of the right of way and the right to flow water through the drain to which reference was made in the application. The City Magistrate, Mr. B. D. Sanwal, called for a police report on this application, He considered the police report and on 14th May 1947, recorded the following order:
I have read the police report. Issue notice to the opposite parties to appear before A. 0. M. on 4th Juoa 1947 The parties should appear before A, C. M. on 4th June 1917.
The notice actually issued in compliance with this order ran as follows:
A dispute having arisen poncerning the right Of use of a public rasta situate within the limits of my jurisdiction the poaaession of which land is claimed exclusively by Qimaruddin Hasan, SRamsuddln Hasan and Waziruddin Hasan and it appearing to me on due inquiry into the same that the said land has been open to the enjoyment of Chaiidhiiri Mushtaq Ahmad and the said use has been enjoyed within three months of institution of the said inquiry.
I do order the said Qamaruddin Hasan, Shamsnddin Hasan and Waziruddin Hasan, or any one in their interest shall not take possession of the said land to the exclusion of the eujoyment of the right of use afjresnid until they shall obtain a dearee or order of the competent Court adjudging them lo be entitled to exclusiva possession.
Given uncler my hand and the seal of the Court this day of 14ih May 1947. Sd. B. D. Sanwal.
In due course the case was taken up by Mr. Bisen, the Additional City Magistrate, and after what appears to be a careful inquiry, he came to the conclusion that the complainant had a right of public way over the land in dispute and had been exercising it till immediately before interference by the defendants. He ordered the defendants not to interfere with the exercise of that right. He further ordered that any obstructions put on the way will be removed immediately. The defendants were directed to move 'the proper civil Court for establishing any claim they may have on the lands.' Dissatisfied with this decision the petitioners went in revision before the Sessions Judge of Lucknow. The revision was disposed of by the Moveable Oivil and Sessions Judge of Lucknow on 81st March 1948. It was dismissed. The petitioners have now come up to this Court.
3. Three points have been urged by the learned Counsel on behalf of the petitioners.
(I) That the City Magistrate had no power to transfer the case to the Additional City Magistrate after he had iaaued a notice as contemplated by H. 147, Criminal P. C.J (2) that there was no danger of. a breach of the peace, and (3) that the interim order passed by the City Magistrate amounted to an absolute order and the influenced the opinion of the Additional City Magistrate and resulted in prejudice to his clients.
I will deal with these points seriatim.
4. In support of the first contention, the applicants' learned Counsel relied on Misri Chau-dhari v. Narsingh Prasad Tewari 62 I, C, 179 : (A.I.R. (8) 1921 Pat. 833: 22 Cr. L. J. 483 ). It was held in that case that under 8. 147 of the Code of Criminal Procedure, a Magistrate drawing up a proceeding was be und to direct the parties to appear before himself and an order direct ing the parties to appear before another Magistrate is illegal and vitiates the proceedings. Mr. Jus. tice Jwftla Prasad who decided that case recorded a finding that the Sub-Divisional Magistrate concerned in the case before him did not transfer the case expressly or by implication to -the. other Magistrate to continue the proceedings, it is obvious that in view of this finding Mr. Yaqub, the other City Magistrate who continued the proceedings, did not acquire jurisdiction to deal with the case and whatever was done by him was without jurisdiction. It is true that the learned Judge made the following observations:
As to the first (objection) that the proceeding wag drawn up by the Sub-Divisional Magistrate directing the parties to appear before Syed Mohammad Yakub on 28th August 1920. Section 147, as well as 8. 145 of the Oodu clearly requires that the Magistral b drawing up the prtoeedinga shall require the parties concerned 'to attend his Court'. It was, therefore, illegal for the Sub-divisional Magistrate to direct the parties to appear before another Magistrate, Mr. Mohammad Yakub. The older is, therefore, against the clear direo-tiou iu the Code and cannot be cured any irregularity (sic).
Reference was made before the learned Judge to the case of Gurudas Nag. v. Gagmendra Nath Tagore 2 0. L. J. 614 : 3 Or, L. J. 88 , where it was held that a proceeding under Section 145 is a criminal case and a Magistrate has power to transfer it under Sfl. 193 and 628 of the Cede of Criminal Procedure. It was further held in that case that the transfer, even if invalid, was cured by Section 529 (f). The learned Judge observed that the ruling had no application in asmuch as the Sub-divisional Magistrate in the case before him-, did not transfer the case expressly or by implication to Mr, Yakub.
5. It may further be pointed out that the learned Judge appears to have omitted to take note of the fact that the language used in Section 147r paragraph 1 so far as relevant for the purposes of the present case is not exactly the same as that used in Section 145. Under Section 145, the words used are:
Whenever a District Magistrate...he Shall make as order in writing stating the grounds of his being so satisfied, and requiring the parlies concerned in such dispute to attends Court in person or by pleader....
Under Section 147, the words used are:
Whenever any District Magistrate,.,, he may mate-an order in writing stating the grounds of his being so satisfied and requiring the- parties concerned in such-dispute to attend the Court is person....
Though personally I do not think the use of the. words 'to attend his Court' takes away the general power of the Magistrate under Section 193 to transfer the proceedings pending before him to any other Magistrate, I have mentioned this distinction because the learned Judge in the Patna case atlaohed importance to the worda 'his Court.' It is intesesting to note that two years later, the decision of Jwala Prasad J. was not followed in the same High Court. It was distinguished on the ground that the decision turned on the finding that there was no order for transfer of the casa expressly or impliedly,, giving the other Magistrate jurisdiction to deal with the matter (see Abdul Hamid v. Hasan Baza h, I. E. (10) 1923 Pat. 366 24 cr. L.J. 487. Eeference may in this connection be also made to Mahendra Singh v. Mst. BajpatH A.I.R. (9) 1922 ALL. 99 : 23 Cr. L. J. 205 and Kapoor Ghand, v. Sura j Prasad : AIR1933All261 . I am elear, therefore, that Mr. Sanwal had power to transfer the proceedings pending before him to the Court of the Additional City Magistrate and the order passed by Mr, Bisen cannot be challenged on that ground.
6. As regards the next point whether there did or there did not exist a danger of a breach of the peace, it is sufficient to say that this is a finding of fact and it is not for this Court to interfere with such a finding in exercise of ita revisional jurisdiction. I may observe that the material on which this finding was arrived at,, though meagre, cannot be said to have been, arrived at without any evidence.
7. The last point urged was that the order passed by Mr. Sanwal on 14th .May 1947, was an absolute order which left nothing further to. be decided by the Additional City Magistrate. It must be conceded that the order made by Mr. Sanwal, in so far as it directed the present petitioners that they should not take possession of the said land to the exclusion of the enjoyment of the right of use aforesaid 'until they shall obtain a clear order of the competent Court adjudging them to be entitled to exclusive possession,' cannot be defended. My be that Mr. 8anwal could direct the petitioners not to interfere with the exercise of the right claimed by Mushtaq Ahmad pending disposal of the matter before him, but surely he could not at the initial stage order them to desist from interfering with the exercise of the right claimed by Oh. Mushtaq Ahmad 'until they shall obtain a decree or order of the competent Court adjudging them to be entitled to exclusive possession'.
8. I have in the present revision, however, not to determine the legality of that ordur. The matter for consideration before me is the order passed by Mr. Bison. If Mr. Sanwal passed an irregular or even illegal order does it affect the validity of 'the order passed by Mr. Bisen? It was argued before me that the result of this irregular order passed by Mr. Sanwal was that Mr. Bisen could not bring a fair and unprejudi. ced mind to bear upon the matters before him. Nothing that has been said inclines me to take that view. Mr. Bisen was alive to the defect in the order passed by Mr. Sanwal and he turned down the request made on behalf of Mushtaq Ahmad to treat the order passed by Mr, Sanwal as an absolute order. But apart from that if the present petitioners had any grievance against that order, or they apprehended that Mr, Bisen in view of that order would not be able to bring an unprejudiced mind to bear upon the inquiry before him, they ought to have moved the proper Court to transfer the case to-some other Court, Not having done so, and there being no evidence that Mr. Bisen was actually prejudiced by the order passed by Mr. Sanwal, there is no foroa in this contention.
9. All the three points urged in support of the application fail. The application is accordingly dismissed.