1. This is a Reference by the Additional Sessions Judge of Hooghly recommending that an order passed under Section 147 of the Criminal Procedure Code should be set aside.
2. The dispute between the parties was with regard to the performance of the puja of an idol. There was no dispute as regards the temple or any land belonging to the idol. The whole question in controversy is whether the right claimed by the first party is a right of user of any land, as explained in Section 145, Sub-Section (2) of the Criminal Procedure Code. The right is alleged to be a right to go into the temple and to perform the puja, and to take a portion of the offerings made to the idol.
3. The learned Sessions Judge is of opinion that this right is not included within the words 'right of user of any land.' He refers to a decision of this Court in the case of Guiram Ghosal v. Lal Behari Das (1910) I. L. R. 37 Calc. 578., in support of his conclusion.
4. It is contended on behalf of the first party that that decision proceeded upon the ground that the expression 'land' was not defined in Section 145 of the Criminal Proceedure Code, as it then stood, and as now it has been especially enacted that it includes a 'building' under the newly added Sub-section (2) of Section 145, the authority of that case is no longer in force. However, that may be, it seems to me that the right to perform the puja of an idol, or to have a share of the offerings made to the idol, cannot be said to be a right of user of any land, as explained in Section 145 of the Criminal Procedure Code, and, therefore, the present dispute cannot be considered to be one coming under the provisions of Section 147 of the Code.
5. On this ground I would accept the Reference, and set aside the order of the Magistrate in favour of the first party.
6. if there is such a dispute between the parties which, the Magistrate considers may lead to any breach of the peace, he may take such steps as he considers necessary under Section 107 of the Criminal Procedure Code.
7. The order for payment of costs is set aside, and the costs, if paid, will be refunded.
8. I agree.