1. I have before me a recommendation by the District Magistrate of Nagaur that an order passed by a Magistrate of Parbatsar on 25th October 1943 be set aside.
2. Kama, Sukha and Jetha filed an application under Section 147, Criminal P. C., in the Court of the Magistrate in question on 18 th September 1948 and alleged that they had a right of way across the field of Bhanwar Singh and Bhopal Singh, that the latter were interfering with their eight and that this dispute was likely to cause a breach of the peace. Bhanwar Singh and Bhopal Singh appeared before the Court in obedience to the process issued by it and submitted that there was a foot path across their field which could be used by Rama Sukha and Jetha, but that the latter wanted to take their carts across the field and this they were not entitled to do. Daring the pendency of these proceedings; Rama, Sukha and Jetha presented an application praying that an ad interim order be issued enabling them to carry their manure from their Dhani along the disputed path in carts to their field within the boundary of the village, Rampura. They alleged that they had about 200 cartloads of manure which had to be transported to their field in Rampura, and that the path in question being the shortest route (three-fourth of a mile in length) should be allowed to be used by them because the alternative path was longer by about one and a half miles, and that would mean loss of time and money to them, Bhanwar Singh and Bhopal Singh opposed this application, but the learned Magistrate granted it, subject to certain safeguards. He directed that the applicants should transport the manure along the path in question for a period of four days and the opposite parties, Bhanwar Singh and Bhopal Singh, were ordered not to interfere with the passage of the carts across their field along the path during those four days. He further ordered that an Ameen be deputed to supervise and to see that the carts passed along the path in question so that no damage or inconvenience was caused. Bhanwar Singh and Bhopal Singh filed a revision petition against this order in the Court of District Magistrate, Nagaur, and contended that the Court below was not authorised by law to pass an interim order of this nature and that therefore, the order in question was illegal and ultra vires. The District Magistrate has accepted the contention put forward on behalf of Bhanwar Singh and Bhopal Singh and has as already stated, recommended to this Court that the order in question be set aside.
3. Neither of the parties has appeared al-though notices have been duly served on them. The learned Public Prosecutor has appeared and I have heard him. He has supported the recommendation made by the learned District Magistrate.
4. The learned District Magistrate has based his recommendation on two grounds. The first ground is that, in view of all the facts and circumstances, there did not, in his opinion, exist any such emergency as could justify such an order. This may be described as a ground of fact. The second ground, which may be described as the ground of law on the basis of which the revision petition was filed, is that the trial Magistrate had no jurisdiction to pass such an order. He has in this connection, mentioned two decisions, (1) Bamchandra v. Shankarrao, A.I.R. (19) 1932 Nag. 83 : (33 Gr. L. J. 556) and (2) Sk. Khoda Bux v. Mozaharul Haque, A. I. R. (27) 1940 cal 330 : (41 cr. L. J. 728).
5. I have examined the record and have considered the grounds stated by the District Magistrate in support of his recommendation. I agree with the learned Public Prosecutor that the recommendation of the learned District Magistrate is well founded. Both the grounds mentioned above are, in my opinion, correct. The learned District Magistrate is quite right in holding that, on the facts, there was no justification for such an order, even if the trial Magistrate was authorized by the law to make such an interim order in proceedings under Section 147, Criminal P. C. The other ground mentioned by the learned District Magistrate is also correct. In my opinion, he is quite right in saying that a Magistrate, in whose Court proceedings under Section 147, Criminal P. C., are pending is not authorized by the law to pass such an order. The second proviso to Sub-section (4) of Section 145 of the Code, on which the trial Magistrate relied, does not authorize such an order.
6. For the reasons stated above, I accept the reference and set aside the birder passed by the Magistrate of Parbatsar on 26th October 1948.