1. In this case the question is whether Section 45 of the Criminal Procedure Code or Section 147 of the same Code was the proper rule of law under which the Court below should have proceeded.
2. It appears that there is a well in Najibabad from which the Hindus draw water, but they object to the Mohammedans drawing it. A petition of complaint was filed on behalf of certain Mohammedans before the Court of a Magistrate complaining that the Hindus had been so using the well as to make it impossible for the Mohammedans to use the same. They complained, among other matters, that the Hindus were bathing at the well and defiling the well water.
3. The learned Magistrate issued notice to some of the Hindus and some of the Mohammedans and started a case under Section 145 of the Criminal Procedure Code. After taking evidence he tame to the conclusion that he was not satisfied as to the exclusive possession of either party and thereupon he ordered the well to be attached under Section 146 of the Criminal Procedure Code.
4. In this Court several points have been taken and one of them is that the learned Magistrate ought to have proceeded under Section 147 of the Criminal Procedure Code. The argument is this. On the admission of both sides the Hindus have been using the well and that the only contention before the Court was whether the Mohammedans also had the right to use the well. There is also a contention that the learned Magistrate ought not to have chosen the parties who were to represent either side before him. It is said that if the learned Magistrate passed an order, that order should bind only those whom he has chosen and not a whole community.
5. I will take the last point first. The learned Counsel for the applicants has not been able to point out to me any rule of procedure like the one contained in Order 1, Rule 8 of the Civil Procedure Code by which a representative suit may be brought or a representative defence may be set up. An order under Chapter 12 of the Criminal Procedure Code is more or less an executive order and it is designed to avoid a breach of the peace. In the circumstances the Magistrate would be, in my opinion, justified in choosing out who should be the right people to represent each community and after hearing whom he should either permit a community to do a certain thing or to prevent it from doing it till a Civil Court has decided upon the rights of the parties. The second argument, therefore, does not hold good.
6. As regards the first point, I am of opinion that it has got great force. The well is not such a property as can be said to be in the exclusive possession of any one particular person so long as the public or a part of it is allowed access to it. So far it being common ground that the Hindus had been using the well, the real question for decision before the learned Magistrate was whether the Mohammedans also had a right to use the same. In this view Section 147 of the Criminal Procedure Code applied and there was no justification for preventing the Hindus from using the well.
7. In my opinion the learned Magistrate has to come to a definite conclusion as to whether the Mohammedans have a right to use the well or not. It may be that they have failed to establish conclusively to the mind of the Magistrate that the right exists. In that case the Magistrate will be bound to say that the right does not exist. But the learned Magistrate has not at all approached the case from this point of view and I am not prepared to accept his finding that he is unable to decide which party is in possession as amounting to a finding that the Mohammedans' right to use the well has not been established.
8. I set aside the order dated the 18bh of August, 1924 and direct the learned Magistrate to proceed according to law. He will take such fresh evidence as may be adduced and come to a definite finding as to whether the right claimed on behalf of the Mohammedans exists or not and then pass an order agreeable with Section 147 of the Criminal Procedure Code. I make no order as to casts in this Court.