S. B. Sen, J.
This case has been referred by Raina J. under Sub-rule (2) of Rule 9 of Chapter I of the High Court Rules, for decision of the following questions:
(i) Whether under Section 147(2) of the Code of Criminal Procedure the Magistrate is competent to issue a mandatory injunction for the removal of the existing obstruction which is necessary for maintaining status quo and prohibiting the other party from interfering with the right of the aggrieved party, until the matter is decided by a competent Civil Court.
(ii) Whether the view expressed by the Nagpur High Court in King Emperor v. Abdullah, ILR (1949) Nag 388 = (AIR 1949 Nag 275) which was followed by this Court in State of M, P. v. Sheikh Ramzan, Criminal Revn. No. 56 of 1966, D/- 28-9-1966, vide 1967 Jab LJ (SN) 48 is correct.
2. The facts which have given rise to this reference are simple. An order under Section 147 Cr. P. C. has been passed by the Sub-Divisional Magistrate P. R. Datar. in Misc. Cr. Case No. 183 of 1965 against Phodal and five others on theapplication of one Khema directing them to clear the way of Khema to his field No. 1347 from between the fields of Kh. Nos. 4346 and 4347 through the Medh. Phodal and four others went up in revision to the Sessions Judge. Bhind, against the order of the said S. D. M. and he concurred with the conclusions of the S. D. M. in holding that Khema has a right of way through the medh of Kh. Nos. 4346 and 4347 and also that the medh has been disturbed by Phodal and others. The obstruction that has been created by Phodal and others has been ordered to be removed so that Khema can go to his field unobstructed as he had been doing all these years.
3. The learned Addl. Sessions Judge, however, did not agree that the Sub-Divisional Magistrate could pass a positive order directing the removal of the obstruction. According to the learned Addl. Sessions Judge, it was beyond the jurisdiction of the Magistrate. The Addl. Sessions Judge, Bhind, therefore, referred the matter to the High Court with the recommendation that the order of the A.D.M, being without jurisdiction be quashed and set aside.
4. The matter then came before the Single Judge Raina J. who has not agreed with the Additional Sessions Judge nor with the views of this Court expressed in certain decisions, as we will presently see, of the Single Judge of this Court and has referred the two questions as stated above.
5. The short question is whether the Magistrate can issue an order removing an obstruction. Section 147(2) may be quoted for the sake of ready reference:
'147(2). If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right:
Provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.'
The two views to which we will presently refer are regarding the interpretation of Sub-section (2). One view is that a Magistrate acting under the powers conferred under Section 147 Cr. P. C. has no power to issue a mandatory injunction directing the removal of an existing obstruction, whereas the other view is that he can do so. The former view has been expressed by the Calcutta. Bombay and Nagpur High Courts: the latter view is of the High Courts of Allahabad, Madras, Patna, Assam, Lahore and Mysore in caseswe will presently refer. Hemeon J. in ILR (1949) Nag 388 followed the decision in Syed Usman All v. Crown, AIR 1938 Nag 297. Hemeon J. did not give any reason, except that he had followed the view in the earlier case decided by Gruer J. In that case also we do not find much discussion as to why the Magistrate will have no power to issue an injunction mandatory in nature if it is necessary to do so. It only accepted the view of the Calcutta High Court in Hari Mati Dasi v. Hari Dasi, AIR 1925 Cal 991, Haradhone v. Brojendranath, AIR 1937 Cal 513 and also Ram Dhan v. Barhamdeo Lal, AIR 1929 Pat 351, The view of the Madras High Court in Venkanna v. Venkata Surya Niladri Rao, AIR 1930 Mad 865 was not relied on for the simple reason that Section 133 Cr. P. C. can be utilised for issuing a mandatory injunction. Shivdayal J. in Criminal Revn. No. 56 of 1966, D/- 28-9-1966 = 1967 Jab LJ (SN) 48 has also followed the view expressed by Hemeon J. and Gruer J. and has relied on the Full Bench decision of the Calcutta High Court in Hem Chandra Banerjee v. Abdur Rahman, AIR 1942 Cal 244 (FB). Raina J. has expressed the view that the decisions of the learned Single Judges in these three cases require to be reconsidered.
6. The view which is expressed by the three decisions of this High Court finds support from the decisions of the Calcutta High Court in AIR 1925 Cal 991, AIR 1942 Cal 244 and Kirti Bhusan Namua v. Lakshman Das, AIR 1959 Cal 314. The Bombay High Court is in line with the view expressed by the Nagpur and Calcutta High Courts in Shantilal v. Dahyabhai, AIR 1954 Bom 368.
7. On the other hand we have the views of the Allahabad High Court. A Full Bench decision in Abdul Wahab Khan v. Mohd. Hamid Ullah, AIR 1951 All 238 (FB) overruling the decision in Ramchand v. Emperor. AIR 1947 All 302 held-
'A power to effectuate a certain object which the Legislature has in view must be construed as implying the existence of all such ancillary powers as are necessary for carrying out the intention of the Legislature and effectuating the object in view. No doubt, under Section 147 the jurisdiction of a Magistrate is confined only to the passing of prohibitory orders which are generally in a negative form and he has no power to issue every kind of positive orders to secure the exercise of the right of user by one party. But in order to make a prohibitory order effective, the Magistrate has power to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. In passing such orders the Magistrates must however.bear in mind that their jurisdiction under Section 147 is confined only to preventing breach of peace and they are not expected to hold complicated enquiries as to title and try to adjust the same. Their orders are intended to be only of a temporary nature till the rights of the parties are finally determined by competent courts.'
It is necessary to mention the view expressed by Malik C. J. also in this Full Bench decision, though he generally concurred with the view expressed by Agarwala J., who wrote the leading judgment but felt it necessary to express more explicitly his point of view. We may quote his lines:
'I generally agree with what my brother Agarwala has said in his judgment I would however like to guard myself against being understood to mean that, under Section 147, Cr. P. C., Magistrates have jurisdiction to issue orders even in the nature of mandatory injunctions. It must be borne in mind that Section 147 and similar other sections were not intended to give to the Magistrates power to decide disputes relating to rights of the parties. The sole object behind these sections is to prevent breaches of the peace, and if a Magistrate finds that there is a likelihood of the breach of the peace and that is due prima facie to the wrongful act of a person, he can direct that person to desist from doing a wrongful act, everything incidental thereto must be included, that is, if it is necessary for the wrong-doer to remove himself or remove any obstruction that he has placed in the way of the enjoyment of the right of the other side he must also remove that.
In passing such orders the Magistrates, must, however bear in mind that their jurisdiction under these sections is confined only to preventing breaches of the peace and they are not expected to hold complicated enquiries as to title and try to adjust the same. Their orders are intended to be only of a temporary nature till the rights of the parties are finally determined by competent courts. So far as I can see from the judgments of the lower courts no substantial construction had been built. Some sort of a mud wall was being put up to block the way when the opposite party filed his application under Section 147.'
The Madras High Court in Angappa Gounder v. Krishnaswami Gounder, AIR 1959 Mad 28 accepted the view expressed by the Allahabad High Court. The view of the Patna High Court, however, is not very consistent. The Patna High Court in AIR 1929 Pat 351 held that the Magistrate has jurisdiction to restrain a party from preventing the applicant from himself removing the obstruction, which in fact means that the Court has jurisdic-tion to frame its order as to compel the removal of the obstruction. But this view was later on watered down in Chaturgun v. Jamadar Mian, AIR 1961 Pat 374. The Lahore High Court in Ghumanda Singh v. Emperor, AIR 1941 Lah 210 and Assam High Court in Bhubaneshwari Goswami v. Kaliram, AIR 1960 Assam 90 and the Mysore High Court in Raghunath Shamrao v. Yadav Sambhaji Hattikar, AIR 1959 Mys 177 held that the Magistrate is authorised to pass a mandatory order under Section 147 Cr. P. C. directing the removal of an obstruction and it must be presumed that the power conferred on the Magistrate is an effective power and not a nominal one.
8. We, thus, find that the High Courts in India have differed on the question of the powers of the Magistrate in issuing orders. The learned Single Judge has leaned towards the view expressed by the High Courts of Allahabad, Madras, Assam and Mysore and we think that he is justified in doing so.
9. It appears that the decision of the Calcutta High Court in AIR 1942 Cal 244 accepted only the literal meaning of the expression 'prohibit the interference'. It is no doubt true that if we go by the literal meaning of the expression, the Magistrate has no power to issue mandatory injunction, but we have also to see that the power that has been given to a Magistrate does not become illusive. Section 147(2) is to prevent any interference of the right of easement or similar other rights.
This section is in almost all respect analogous to Section 145, Cr. P. C. as far as the rights of the parties are concerned. Under Section 145 the immediate possession of the property in dispute is decided whereas under Section 147 the immediate right of user of any land or water as an easement or otherwise is decided. If the Magistrate has no power, which is a temporary one both under Section 145 as well as under Section 147 to stop this interference. Section 147 will be made nugatory. If an interference is made of the right of way simply by words of mouth or only by use of force at the time when the right is being exercised by going there, then only the Magistrate's order prohibiting the interference may have some effect. But if the interference is by putting some obstacle on the way which is also an interference, the Magistrate will have no power to order removal if we accept the interpretation given by the Calcutta and the Nagpur High Courts in the cases mentioned above.
For example, if a person puts a barrier, may be even of a very temporary mature, the Magistrate will have no power to order removal of the same under the interpretation given by the High Courtsof Calcutta and Nagpur. So instead of obstructing the right of passage at the time when the person who has a right to exercise it, if a person puts some heavy obstacle or some fencing then no remedy would be left to the person wronged against, except by the long drawn process of the civil Court. Section 147 has been made to prevent such abuse.
10. Their Lordships of the Supreme Court in M. Pentiah v. Veeramaloppa, AIR 1961 SC 1107 have categorilly held the view that the Courts strongly lean against a construction which reduces the statute to a futility. Section 147 is meant to decide in a summary manner and temporarily the dispute of the nature mentioned in Section 147. The observation of the Chief Justice of the Calcutta High Court in the case cited above is as follows:
'If the aggrieved party wishes any fuller or further relief from the Courts the civil Courts are open to him and the remedy is a mandatory injunction.' I am afraid, with due respect, undoubtedly civil Court will be the forum which will ultimately decide the rights between the parties. But so far as Section 147 is concerned the Criminal Court is not to decide the rights. It is only empowered to decide the user if the user has been made within a particular time. There is no question of usurping the jurisdiction of the Civil Court. If we read the proviso which says:
'Provided that no such order shall be made where the right ............',
an order under Section 147, Cr. P. C. prohibiting the interference can only be made when the aggrieved party comes within 3 months or if the exercise is seasonal when the aggrieved party has exercised his right in the last season. The Magistrate has also to decide whether such a right exists in a summary manner. Under Section 147(1A) the Magistrate has to receive evidence as may be produced by the parties, consider the effect of that evidence and take such further evidence as he thinks necessary and decide whether such a right exists. The Magistrate to decide all these questions, has to decide irrespective of the nature of the obstruction. If the Legislature intended that the Magistrate will have no power of issuing a direction to remove interference, then it could have been made clear. It is only after going through the evidence as empowered in Section 147(1A) that the Magistrate comes to the conclusion as to the order that has to be issued. By the time the Magistrate comes to the conclusion, the interference which is temporary may be made permanent and in that way Section 147 will be made useless and futile. If an aggrieved person comes to the Court alleging interference even of atemporary nature, may be by mere threats, he may find, by the time he returns with an order of the Court, a permanent wall standing in his way. If we accept the views expressed by the Calcutta and Nagpur High Courts he will have no remedy though the interference has been made of his right of way very recently.
11. According to us the steps that are contemplated under Section 147 are to be taken when interference is made with the exercise of the right notwithstanding the fact that such a right was being exercised till recently for a long time. It is a temporary measure and if the proviso is taken note of there will be no difficulty in issuing proper order at the proper time. The order may be for removing an obstruction if the exigencies of the case so require. The order under Section 147 Cr. P. C. is always subject to any subsequent decision of Civil Court of competent jurisdiction. Therefore, no question of usurping the jurisdiction of the Civil Court arises.
12. We may also mention here that the Full Bench decision in AIR 1942 Cal 244 was noticed in a subsequent decision by the same Court in AIR 1959 Cal 314. Their Lordships while discussing the views expressed by the Allahabad High Court have observed thus-
'Although that is perfectly a rational view to take, there is an undoubted contrast between Section 147 as it stood before its amendment in 1923 and the section as it stands now. Before Section 147 was amended in 1923, it empowered a Magistrate to make an order permitting a thing to be done or directing that a thing shall not be done whereas now all that the section permits the Magistrate to do is to pass a prohibitory order and nothing more. That being so, the statute leaves no room for doubt as to the scope of the Magistrate's powers under Section 147 Cr. P. C, as amended. In any event, as we are bound to follow the Full Bench case of this High Court, it has got to be held that the learned Magistrate was wrong in passing the order that the second party must remove again the fencing and Pagar.'
It appears, therefore, that their Lordships were influenced by the amendment. We do not think that the amendment was made to curtail the powers of the Magistrate. The Select Committee observed:
'Doubts have been expressed as to the procedure to be followed in cases under Section 147. The recent amendments were introduced with a view to make it clear that the procedure laid down by Section 145 is to be followed in cases of rights in, to or over land or easements covered by Section 147. It is also made clear that under this section, a Magistrate can make an order prohibitingany exercise of an alleged right to any subsequent decision of a Civil Court of competent jurisdiction as provided in Clause (4) of the present section.'
There is nothing in the observation of the, Select Committee that the amendment was made to curtail the powers of the Magistrate. We have, therefore, to interpret this section as it stands. If interference has been prohibited it has to be prohibited effectively. The act of interference may be temporary or may be permanent. A wall standing on the road causes interference. If a person can be asked not to interfere in exercise of the right of way by standing or by threats or by use of force, why it cannot be done by asking him to remove the structure erected by the opposite party with a view to cause interference.
13. It may be argued that by issuing an order not to interfere in the right of way the complainant may remove the obstacle himself and the order not to interfere in the right of way will then operate so that no obstacle may be created if the complainant exercises the right Such an interpretation will be utterly useless if the person who interferes puts up an obstruction which is very difficult to remove or may entail great labour, cost and time or even the risk of life if the complainant has a right temporary or permanent he should be allowed to exercise without any hitch, fear or favour.
14. There is also another factor to be considered. Under Section 555 Cr. P. C. the forms set forth in the Fifth Schedule, with such variation as the circumstances of each case require, may be used for the respective purposes therein mentioned, and if used shall be sufficient. If we look to the forms given in the Fifth Schedule. Form No. XXIV runs as follows:
'XXIV. Magistrate's order prohibiting the doing of anything on land or water.
(See Section 147)
A dispute having arisen concerning the right of use of (state concisely the subject of dispute) situate within the limits of my jurisdiction, the possession of which land (or water) is claimed exclusively by (describe the person or persons), and it appearing to me, on due inquiry into the same, that the said land (or water) has been open to the enjoyment of such use by the public for if by an individual or a class of persons, describe him or them) and (if the use can be enjoyed throughout the year) that the said use has been enjoyed within three months of the institution of the said Inquiry (or if the use is enjoyable only at particular seasons, say 'during the last of the seasons at which the same is capable of being enjoyed');
I do order that the said (the claimant or claimants of possession), or any one in their interest, shall not take (or retain) possession of the said land (or water) to the exclusion of the enjoyment of the right of use aforesaid, until he (or they) shall obtain the decree or order of a competent Court adjudging him (or them) to be entitled to exclusive possession.'
The form says that they 'shall not take possession of the land to the exclusion of the enjoyment of the right of use aforesaid'. This phrase clearly includes removal of any steps taken towards possession when the time limit has been given, that is the interference within three months before the date of order or interference after the last season, it clearly contemplates an infringement of the right within that period, and, therefore, in order to make Sub-section (2) in conformity with the proviso the Magistrate should be held to have power to order removal of any obstruction created within the period allowed under the proviso. Otherwise there would be no sense in giving the time limit. The only question is that the complaint must be made as early as possible that is within the time allowed under the section. In that view of the matter also the power of the Court must be there to order removal. The Court cannot ask the person interfering to remove any obstacle if the interference is an old one.
15. From all the discussions made above, we should not be understood to mean the Magistrate shall issue an injunction mandatory in nature in all cases where there is an interference contemplated under Section 147. It must be remembered that similar to Section 145, Section 147 can only be utilised when there is a likelihood of the breach of peace. The Magistrate is not authorised to decide complicated disputes of civil nature and, therefore, his orders, which can be effective only temporarily till the decision of the Civil Court, are only to prevent breach of peace. The Magistrate has to exercise judicial discretion in issuing an order whether it is mandatory or otherwise even if all the other circumstances bring the case under Section 147. In fact Section 147(2) uses the word 'may make an order' which means that an order under Section 147(2) should not be made invariably even if it appears to the Magistrate that the right contemplated under Section 147 exists.
16. We, therefore, fully agree with Raina J. and with due respect, dissent from the view expressed by the Nagpur High Court in ILR (1949) Nag 388 = (AIR 1949 Nag 275) and also from the view expressed by Shivdayal J. in Criminal Revn. No. 56 of 1966, D/- 28-9-1966 = 1967 Jab LJ (SN) 48. Our answer to thefirst question is that under Section 147(2) of the Code of Criminal Procedure the Magistrate is competent to issue a mandatory injunction for the removal of the existing obstruction which is necessary for maintaining status quo and prohibiting the other party from interfering with the right of the aggrieved party, until the matter is decided by a competent Civil Court and to the second that the view expressed by the Nagpur High Court in ILR (1949) Nag 388 = (AIR 1949 Nag 275) which was followed by this Court in Criminal Revn. No. 56 of 1966 D/- 28-9-1966 = 1967 Jab LJ (SN) 48 is not correct.
17. As the whole case has been referred to us, we reject the reference made by the Additional Sessions Judge and restore the order of the S.D.M. Gohad directing party No. 1 Phodal and others to clear the way of Khema to his field No. 1347 from between the fields of Kh. Nos. 4346 and 4347 through the Medh.