Ghose and Rampini, JJ.
1. The subject-matter of this rule is an order made by the Sub-Divisional Magistrate of Madaripur, under Section 147 of the Code of Criminal Procedure, declaring that the first party is entitled to exercise the right of fishery in a certain river as against the second party who claimed the julkur rights as appertaining to his zemindari, pergunnah Edilpur.
2. It has been contended before us by the learned Counsel for the second party, in the first place, that a dispute concerning the right of fishery is not a dispute which falls within the scope of Section 147 of the Code; and, therefore, the Magistrate was not competent to take action in this case under that section. It has been further contended that the Magistrate had no jurisdiction to make the order that he did, because the proceeding which he had recorded under Section 147 was based upon materials which did not disclose that there was any imminent danger of a breach of the peace in consequence of the dispute regarding the right of fishery between the two parties concerned.
3. Now, in regard to the first question raised before us, the learned Counsel for the second party has contended, referring to certain cases under Section 145 of the Code that the same reasons, for which it has been held that a right of fishery is not tangible immoveable property within the meaning of Section 145, equally apply to this case, and that a dispute concerning the exercise of a right of fishery is not a dispute 'concerning the right to do or prevent the doing of anything in or upon any tangible immoveable property' within the meaning of Section 147. No doubt, it has been held that a right of fishery is not tangible immoveable property within the meaning of Section 145, and that the Magistrate is not competent to take action in the case of a dispute regarding such a right arising under that section. But an examination of the language of the two sections (Sections 145 and 147) will show that the contention which has been raised before us cannot be sustained. The words in the first-mentioned section are: 'A dispute likely to cause a breach of the peace exists concerning any tangible immoveable property, or the boundaries thereof; whereas the words of the other section are: 'A dispute likely to cause a breach of the peace exists concerning the right to do or prevent the doing of anything in or upon any tangible immoveable property;' and it seems to us that, although a Magistrate is not entitled to proceed under Section 145, when a dispute arises before him concerning the exercise of a julkur right, still he might take action when such a dispute arises under Section 147, and that the words 'the right to do or prevent the doing of anything in or upon any tangible immoveable property' do cover a case like the one we are now concerned with. We find that the same view was adopted by a Division Bench of this Court in the case of Dukhimullah v. Halway. We accordingly overrule this contention.
4. It seems to us, however, that the second contention raised before us must prevail. It appears upon an examination of the proceeding recorded by the Magistrate, under Section 147 on the 15th July 1895, that it was based entirely upon the two Police reports dated the 10th June and the 5th July respectively. These two Police reports do not show that there was any imminent danger of a breach of the peace resulting from the dispute between the two parties concerned. They are, as it seems to us, rather the other way. In the report made by the Sub-Inspector of Police on the 10th June, that officer, after referring to a dispute which occurred between the parties in the preceding year, and which ended in an order binding down some of the men, the first party, to keep the peace, says as follows: 'But it does not appear from the evidence of any of the witnesses of both parties that- there is any dispute or quarrel going on between the parties, nor was any person seized,' though later on the Police officer says: 'However, as both parties are powerful, it is no wonder that some kind of riot or affray might take place in connection with the said julkur in future;' and he accordingly recommended that proceedings should be taken against the parties under the provisions of, Section 107 of the Code for the purpose of binding them down to keep the peace. The other report of the 5th July does not at all touch the. matter. It simply gives the boundaries of the property in dispute.
5. As already mentioned the proceeding of the Magistrate of the 15th July 18.95,, was entirely based upon these two Police reports, and upon nothing else. The learned Counsel for the first party, in the course of his address, called our attention to certain affidavits which were put in on behalf of the first party, when making an application before the Magistrate for the purpose, of action being, taken under -section 144 of the Code of Criminal Procedure, and he contended that, though it might be that the Police reports, upon which the proceeding of the Magistrate was expressly based, did not disclose that there was any imminent danger of a breach of the peace, still there Were other materials before the Magistrate upon which he could take action under Section 147 of the Code. The simple answer to. this contention is that the Magistrate's proceeding was entirely based Upon the two Police reports, and there is nothing to show that he was satisfied, that there was a dispute likely to lead to a breach of the peace, from the affidavits that had been presented before him on an earlier occasion. We might here mention that it has been held in various, cases in this Court, under the cognate Section 145 of the Code that in order to give jurisdiction to a Magistrate to take proceedings, under that section, he must be satisfied from Police reports, or other materials, that there is an imminent danger of a breach of the peace, resulting from a dispute between the parties concerned, and that if the materials upon which the proceedings of the Magistrate is based do not disclose the existence of such a' dispute as is likely to cause a breach of the peace, the order made by him under that section would be entirely void in law : See Munglo v. Durga Narain Nag 25 W.R. 74, Chunder Madhub Ghose v. Juggut Chunder Sen 4 C.L.R. 483 Uma Churn, Santra v. Beni Madhub Boy 7 C.L.R. 352, Damodur Bidyadhen Mohapatro v. Syamanufid Dey I.L.R. 7 Cal. 385, Dhanpnt Singh v. Chutterput Singh I.L.R. 20 Cal. 513, and Queen-Empress v. Gobin Chandra Das I.L.R. 20 Cal. 520.
6. We think that having regard to the language of Section 147, the same view may well be adopted' in the case' of a dispute falling within the scope of that section. In the two recent cases in I.L.R. 20 Cal. just referred to, this point, although it arose in a' case under Section 145, was very fully discussed; and in the last-mentioned case Mr. Justice Prinsep., in delivering the judgment of the Court, held as follows: 'Before taking action the Magistrate is bound to be satisfied from a Police report or other information on this point, and he is also bound to make an order in writing, stating the grounds of his being so satisfied and later on he observed that, unless this were so, the whole proceeding would be void in law. It has, however, been contended before us by the learned Counsel for the first party that, inasmuch as there was evidence taken at the trial, Upon which the Magistrate found, as a matter of fact, that there Was an imminent danger of a breach of the peace resulting from the dispute between the parties, the order of the Magistrate could not in law be interfered with. But it seems to us that this view cannot be accepted as correct, because, if we are right 'in holding, as we do hold, that the Magistrate had no jurisdiction to take action in this matter under Section 147 by reason of the materials, upon which his proceeding of the 15th July 1895 was based, not disclosing the fact that there was an imminent danger of a breach of the peace, any evidence that he might have taken later on, in the course of the trial, could not give him a jurisdiction which he did not otherwise possess [see in this connection Queen-Empress v. Gobind Chandra Dass I.L.R. 20 Cal. 520 particular passage in p. 535.]
7. We think we might here also refer to some of the observations of Petheram, C.J., in the case of Batkoo Lall v. Domi Lall I.L.R. 21 Cal. 727 which was a case under Section 14'7. He says as follows: '1 think that Magistrates ought not to embark on' enquiries of this kind, in which it is certain that injustice may be done from defective procedure, unless they are satisfied that a real danger of the evil, for the prevention of which this procedure was devised, does in fact exist, and they would be wise not to use this procedure in such a case as the present,' when' it must involve a, long and complicated enquiry and 'the presence 6f a great number of people, when such an obvious remedy as binding' down the five persons who are said to have threatened Domi Lall and his labourers was ready to his hand.' We think, too, that the proper course for the Magistrate to have followed in this case was to bind down such of the persona as were likely to disturb the peace under Section 107 of the Code.
8. We a accordingly discharge the order of the Magistrate, and direct that the rule be made absolute.