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Kirti Bhusan Namua and anr. Vs. Lakshman Day - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1674 of 1958
Judge
Reported inAIR1959Cal314,1959CriLJ587,63CWN449
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 147(2) and 539B
AppellantKirti Bhusan Namua and anr.
RespondentLakshman Day
Appellant AdvocateKishor Mukherjee, ;Samar Rai Chaudhury, Advs.
Respondent AdvocateN.C. Talukdar, Adv.
Cases ReferredAbdul Wahab Khan v. Md. Hamid Ullan
Excerpt:
- .....procedure raises only two points. the first is that as the section stands, it is not open to the learned magistrate to make a mandatory order directing the 2nd party to remove certain obstructions it had already put up before the proceedings were drawn up. the second is that it was not open to the learned magistrate to make use of a report submitted by another magistrate who was asked by the trying magistrate to inspect the locality and to submit a report without examining that magistrate as a witness. the facts of the case are briefly that the 1st party claimed a right of way over a plot of land belonging to the 2nd party and as part of the path was obstructed by putting up a fencing and by digging a pagar, the 1st party applied for action under section 147 of the code of criminal.....
Judgment:

S.N. Guha Ray, J.

1. This Rule at the instance of the 2nd party in a proceeding under Section 147 of the Code of Criminal Procedure raises only two points. The first is that as the section stands, it is not open to the learned Magistrate to make a mandatory order directing the 2nd party to remove certain obstructions it had already put up before the proceedings were drawn up. The second is that it was not open to the learned Magistrate to make use of a report submitted by another Magistrate who was asked by the trying Magistrate to inspect the locality and to submit a report without examining that Magistrate as a witness. The facts of the case are briefly that the 1st party claimed a right of way over a plot of land belonging to the 2nd party and as part of the path was obstructed by putting up a fencing and by digging a pagar, the 1st party applied for action under Section 147 of the Code of Criminal Procedure. A proceeding was accordingly drawn up and affidavits were filed by both the parties. During the pendency of the proceedings the learn ed trying Magistrate asked another Magistrate to inspect the locality, He inspected the locality and reported that there were trees standing on the alternative pathway suggested by the 2nd party so that this alternative pathway was non-existent, The learned Magistrate then made order in the following terms:

'It is ordered Under Section 147 (2) Cr. P. C. that the second party is hereby prohibited from interfering with first party's right of way with his carts over the proceeding pathway between C. S. plots Nos. 1185 and 1186 of Mouza Dihar and in order to make the above order effective, the second party is further ordered that the second party shall with in 7 days from the service of the order upon the second party, remove the fencing and pagar constructed by him so that there remains no obstruction to the existing right of pathway and passage of carts, failing which the fencing and Pagar will be removed at the cost which will be the cost of the proceeding.'

2. Mr. Mukherjee on behalf of the petitioner points out that as Section 147(2) stands, the Magistrate is entitled to make an order only prohibiting any interference with the exercise of such right and it is not open to him to make an order directing the removal of obstruction already caused. There was at first a conflict of judicial decisions in this Court as to the true meaning of this sub-section but this conflict was yet at rest by the Full Bench decision in Hem Chandra Banerjee v. Abdur Rahaman : AIR1942Cal244 , in which it was held that Sub-clause (2) of Section 147 of the Code of Criminal Procedure allows a Magistrate to make the order prohibiting the doing of an act but it does not allow him to direct the doing of an act. As we are bound by that decision, it has got to be held that it was not open to the learned Magistrate to make the order directing the second party to re move the fencing and the Pagar. Of course, if the Magistrate finds that a right of way actually existed, that it was already obstructed before the proceeding was drawn up and if he prohibits any interference with the exercise of such a right, that prohibition becomes totally ineffective when the Magistrate is not empowered to take steps to see that the obstruction already caused is removed. This anomaly was pointed out in the Full Bench case of the Allahabad High Court in Abdul Wahab Khan v. Md. Hamid Ullan, : AIR1951All238 , and it was held therein that in order to make a prohibitory order effective, the Magistrate has power to pass an order for the removal of obstruction, if without its removal the prohibitory order cannot be effectively enforced. Although that is perfectly a rational view to take, there is an un doubted 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.

3. As to the other point, viz., whether the learned Magistrate was entitled to use in evidence the report submitted by another Magistrate to him in pursuance of his own order that this other Magistrate should inspect the locality and report to him whether the alternative pathway suggested by the second party really existed. Evidently this is not a report under Section 539B of the Code of Criminal Procedure because it is a report submitted by another Magistrate. If therefore this report was to be brought on the record and used as evidence at all, it is only fait to the parties that the trying Magistrate should examine that Magistrate as a witness so that the party affected adversely by his report might have an opportunity of cross-examining him. As this was not done, it was not open to the learned Magistrate to make use of this as evidence. Consequently, the whole order has to be set aside and the matter sent back to the learned Magistrate for disposal according to law.

4. The Rule is accordingly made absolute.

N.K. Sen, J.

5. I agree.


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