Bhagawan Swain vs Mathuri Swain

Courtney-Terrell, C.J.—This is a reference by the Sess. Judge of Cuttack u/s 483, Criminal P.C. relating to an order by a First Class Magistrate drawing up proceedings u/s 147 of the code under the following circumstances: On 10th May 1929 one Mathuri Swain petitioned the Sub-Divisional Magistrate of Cuttack complaining of the blocking of a public pathway by Parsu Swain and others which blocking was alleged to have been committed on 4th May preceding. The Magistrate sent the case for police enquirey and report and on 26th June, the police reported that the allegations of the petitioner were true and recommended proceedings u/s 107 against Parsu Swain and his associates. On 20th September both parties petitioned that the proceedings u/s 107 should be dropped and that a proceeding u/s 147 should be drawn up and the Magistrate complied with their request but did not pass his formal order until 4th November 1929.

Now the proviso to Section 147, Criminal P.C. is as follows:

Provide that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquirey, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution.

The Right of user of the public path by Mathuri Swain could not have been exercised within three months of the formal order of the Magistrate passed on 4th November 1929 and if that date is to be considered the date from which the period of three months running backward in time is to be taken it is clear that the proceedings u/s 147 will be abortive. On behalf of Mathuri Swain it is contended that the period backwards from which the three months mentioned in the proviso must run is the first order of the Magistrate made on 10th May 1929 Magistrate made on 10th May 1929 when Mathuri Swain petitioned the Magistrate alleging the blocking of the path way and it is contended that the beginning of the enquiry mentioned in the proviso to Section means the date upon which the Magistrate made his order sending the case for police enquiry. The learned Sessions Judge in his letter of reference takes a different view.

In his opinion the matter of the date enquiry referred to in the proviso to the section is to be tested in the following way: If Section 147, Sub-section (1) be properly read according to his view there must first of all be an order u/s 147 referring to the section and that order must state the grounds upon which the Magistrate is satisfied that a dispute likely to cause a breach of the peace exists and that thereafter there must be an order for an enquiry and that the enquiry does not begin until these two conditions have been satisfied and he construes the words in the proviso "the institution of the enquiry" as referring to the enquiry which according to his view of Section 147, Sub-section (1) does not begin until there has been an order in writing stating the grounds of his being satisfied that a breach of the peace is imminent. In my opinion that construction of the section is not correct. The words in Section 147, Sub-section (1):

and shall thereafter inquire into the matter in the manner provided in Section 145

merely mean that after the order in writing has been drawn up as required by the earlier part of the Sub-section the procedure in the inquirey is then to follow the course laid down in Section 145 and it is immaterial whether the enquiry itself was instituted before or after the drawing up by the Magistrate of the order requiring the parties to attend the Court. It will be noticed that in Section 145 the word "inquiry" is not used at all and u/s 145 the proceedings begin from the moment that the Magistrate having been satisfied that a breach of the peace exists makes his order requiring the parties to attend the Court in person.

It is very clear that if another construction of the words "institution of the enquiry" in the proviso to Section 147, were adopted great difficulties would arise in applying Section 147 in many cases, for a proceeding u/s 107 might be started, the matter might be taken up to the High Court, the High Court might direct that proceedings u/s 107 should be dropped and that proceedings u/s 147 should be undertaken in which case a loss of many months might have occurred, and if the words "institution of the in quiry" mean the date of the ultimate order which actually mentions the section it would be impossible for the party who had alleged that he had exercised the right to be able to prove that he had exercised the right within three months from the date of the order. In my view therefore the opinion expressed by the learned Sessions judge is erroneous. I find that I am supported in my opinion by the case of Rama nath Basu Choudhury v. Sarada Prosad Basu Choudhury [1926] 44 Cri.L.J. 214 where the learned Judges said:

We are not prepared to accede to the argument that the institution of the inquiry meant the date when the formal proceedings were drawn up under the section. Such an interpretation of the section would make its working difficult and we think the words of the section are wide enough to justify such a conclusion as that to which we have come.

I Would therefore reject the reference and the proceedings should now continue.

I agree. In my opinion the learned Jude has taken too narrow a view of the law in regarding the words "institution of the enquiry" in the proviso Clause (2) to Section 147, as meaning !the date of the drawing up of the formal proceedings. This as the learned Chief Justice has pointed out would lead to considerable difficulties in the working of the section. The proviso is one relating to limitation, and it would be very unusual to make, as it were, limitation run backwards instead of forward, that is to say, from the date on which the Court draws up formal proceedings instead of from the date on which the complainant brings his grievance to the notice of the Court either directly or indirectly through the police, this would be the result of accepting the view of the learned Sessions Judge.

The latter date would ordinarily be that on which the Magistrate takes action with a view to enquiring into the allegation. Such action may be as here merely a preliminary to the eventual institution of a formal proceeding but in my opinion it covered by the words referred to. In this case the petitioner approached the Magistrate fiast on 10th May and in my opinion the period of three months should be calculated from that data and not from the date of institution of formal proceedings which was soma seven months later.