Babu Khan vs Babu Raj Kishore Pershad Narayan Singh

Das, J.—I am of opinion that the order passed by the learned Sub-Divisional Officer of Behar u/s 147 of the Criminal Procedure Code must be set aside, on the ground that he has not shown that the right claimed by the second party has been exercised during the last season. The dispute between the parties refers to the right claimed by the second party to put a dam across the mouth of a Pyne. The first party says that the second party has no such right. The Court has come to the conclusion that the second party has such right and "that they have all along been exercising that right." It is argued before me by Mr. Akbari on behalf of the first party petitioners that in order to vest a Court with jurisdiction to deal with a matter u/s 147 it must appear that where the right to do such thing is exerciseable at all times of the year, the right has been exercised within three months next before the institution of the enquiry, or where the right is exerciseable only in particular seasons or on particular occasions, the right has been exercised during the last of such seasons. In this case the second party claims the right to erect the dam only at particular seasons, in fact only once a year. Therefore, Mr. Akbari argues that the Court has no power to permit the second party to construct the bandh unless it is of opinion that the right has been exercised during the last season.

The Court, however, comes to the finding that they have all along been exercising that right. In my view this is not the same thing as saying that the right has been exercised during the last of such seasons, because it may be that the second party has been constructing a dam year after year for the last fifty years but they did not construct a dam during the last season. The Court on those facts would be entitled to come to the conclusion that they have all along been exercising that right and yet could not come to the conclusion that the right has been exercised during the last of such seasons. This argument is considerably strengthened by form No. 24 given in Schedule V, I may also refer to a case reported as Gur-Prasad Dhar v. Lachman Ram Ghose 19 Ind. Cas. 959 : 14 Cr.L.J. 303. In that case it was laid down by Sir Richard Harington and Mr. Justice Coxe that an order u/s 147 of the Criminal Procedure Code is without jurisdiction if it is made in the absence of any finding that the right was exercised within three months anterior to the enquiry. The learned Judges in that case say: "If the Magistrate reads the proviso to section 147, he will see the procedure to be followed before he can make an order u/s 147 and if he looks at the form No. 24, Schedule V, he will notice that the Legislature has provided a form in which the order should go." Mr. Ganesh Dutt Singh, however, relies upon a case reported as Pasupati Nath Bose v. Nando Lal Bose 5 C.W.N. 67. In that case what was claimed was an uninterrupted use of the water of the nullah and the Court recorded a finding that the first party, the Ticcadar and Zamindar, had proved an uninterrupted use of the water of this nullah for twenty years which they had enjoyed as an easement and as of right. Clearly in the facts of that case that finding was quite sufficient to invest the learned Magistrate with jurisdiction to deal with the matter u/s 147 because the right claimed was an uninterrupted right, but here the right claimed is to erect a bandh only once a year at a particular season. Therefore, in my view the decision in Pasupati Nath Bose v. Nando Lal Bose 5 C.W.N. 67 is not to the point.

I hold that in the absence of a finding that the right has been exercised during the last season, the order u/s 147 of the Code of Criminal Procedure passed by the learned Sub-Divisional Officer is without jurisdiction and consequently that order must be set aside.