B.B. Biswas vs Muchiram Mahata and Others

Varma, J.—This is a reference by the Sessions Judge of Manbhum-Singhbhum re-commending that.

the order passed by the Magistrate on 16th June 1938 should be set aside and the Magistrate directed to inquire into the allegations made in the petition of the Manager of the Sijua Colliery and to dispose of the matter according to law.

The learned Sessions Judge has summarized the facts as follows: It appears that Messrs. Tata Iron and Steel Co. Ltd., have got a colliery in mauza Sijua which is called Sijua colliery. There are inclines in the mauza for working out the colliery. One drain which brings down water from the north to the south passes between inclines Nos. 8 and 9 of the Sijua colliery and it runs into a tank called Choudhury bandb situate on plots Nos. 90 and 91 of mauza Sijua having an embankment on its southern side.

The Company have got lands adjoining the Choudhuri-bandh. In 1933 a case u/s 147, Criminal P. C, was filed by the Manager of the Sijua colliery against Muchiram Mahata and others of mauza Sijua. That case was compromised and the most important term of the compromise was that the second party, that is Muchiram Mahata and others, will open a passage in the western corner of the embankment sufficiently large so as not to cause water to enter into or accumulate on the land of the colliery and that if the water passage is closed for any reason the second party will open it and on their default the first party will get it opened through the help of the Court. On 14th May 1938, the Manager made a complaint against Muchiram Mahata and others that the flow of water through the passage mentioned in the compromise had been stopped and prayed for proceedings to be drawn up u/s 147, Criminal P.C. A police enquiry was directed and on receipt of the police report the learned Magistrate passed the following order on 16th June 1938:

Report seen. The report refers to a previous compromise between the parties. The compromise petition is on record. Para. 2 of the petition deals with the obstruction of the fain which was existing at the time. Para. 3 made provision for future obstructions. This paragraph clearly shows that the petitioner can have the drain cleared only through Civil Court. This is all the more patent because no mandatory order under any of the preventive Sections can be passed. Hence, I find that this is not a proper case u/s 147, Criminal P.C., and therefore no action is necessary. The petitioner may have his grievances redressed in proper Court.

I may mention at once that the translation by the learned Magistrate of "adalat" as Civil Court seems to be erroneous because as has been observed by the learned Sessions Judge, "adalat" may be a Criminal Court also. It is against the above order of the Magistrate that the company moved the learned Sessions Judge who has made the recommendation in the terms mentioned in the beginning of this judgment. Reference has been made to the case in Ram Dhan Puri Vs. Parhamdeo Lal and Others, and I am struck by the similarity of the facts of that case to those of the case in hand. But on the merits it is apparent that in the case referred to the Magistrate had taken steps u/s 147, Criminal P.C. whereas in the present case the Magistrate has refused to initiate proceedings under the Section as prayed for by the Manager of the Sijua Colliery.

The question therefore is whether the view taken by the learned Magistrate that the order asked for was of a mandatory nature was correct in view of the distinction pointed out in the case reported in Ram Dhan Puri Vs. Parhamdeo Lal and Others, that when a right has been given by a Court of competent jurisdiction the removal of any obstruction in the enjoyment of that right amounts to an ancillary order and does not amount to a mandatory order. The real question'' however is whether the High Court can order a Magistrate to initiate proceedings u/s 147, Criminal P.C. or under any of the preventive Sections of that Code when he has refused to take action there under. The Magistrate is responsible for the peace of the district and when he says that it is not a proper case u/s 147, Criminal P.C. and therefore no action is necessary, is it competent for the High Court to interfere with such an order

I am of opinion that the High Court cannot order a Magistrate who has refused to take action under any of the preventive Sections of the Criminal Procedure Code to take such action. I may refer to the, decisions in In Re Manikyam A.I.R (1918) Mad. 164 . and Nirpendra Chandra Sen Vs. Sasadhar Saha and Others, . This principle was laid down as early as 1875 in In re Kali Prosunno Roy (1875) 23 W.R. 58 Cr. Mr. Kazimi, appearing in support of the reference has drawn my attention to the decision in Tiloki Rai Vs. Emperor and Others, where deprecating the practice of a District Magistrate ordering a Subordinate Magistrate to draw up proceedings u/s 145, Criminal P.C., if; was held that the order of the District Magistrate directing the Sub-divisional Magistrate to substitute 145 proceedings for 144 was certainly wrong, but as the Sub-divisional Magistrate had already drawn up proceedings in that case it was not interfered with by this Court. In this case also the Magistrate did not draw up proceedings u/s 147, Criminal P.C. and this Court in view of the decision referred to above would not order that such proceedings should be initiated. If the Magistrate finds that there is an apprehension of a breach of the peace he will no doubt dispose of the matter in accordance with law, In the result the reference is dicharged.