Dwarka Singh and Others vs Babu Jamuna Singh and Others

Dhavle, J.—This is an application in revision on behalf of the first party in a proceeding u/s 147, Criminal P.C., which was drawn up on 4th June last on a police report of 9th April reporting that there was an apprehension of a breach of the peace between the parties as the second party desired to make pucca a bund of stream called the Nata, so much so that the Sub-Inspector had had to depute a constable to the spot to preserve the peace pending the orders of the Magistrate. Upon this report the Magistrate first passed orders u/s 144, Criminal P.C., restraining both parties from going to the site. The proceeding u/s 147 went on for sometime and then on 13th August the learned Magistrate noted that the

parties again say that the question may be decided by local inspection alone and it may not after all be necessary to examine all the witnesses some of whom are not readily available.

The Magistrate held a local inspection as desired by the parties the results of which were noted in the order sheet. In his next order the Magistrate said that there was again a talk of compromise through the intervention of the Court, that both parties agreed to the terms and that they promised to file "petitions" to that effect. On the next date the second party filed a petition accordingly, but the first party raised further disputable points. The Magistrate remarked that this was very unfortunate, and he dropped the proceedings on the ground that there was no imminent danger of a breach of the peace as the river Nata runs only during the rainy season and that therefore he was not competent to decide the question on the merits. He added that the first party, since they refused to compromise, would have ample time to go to the civil Court and get their rights defined there.

It has been contended by the learned advocate for the petitioners that the order of the Magistrate calls for interference on more than one ground. In the first place it was not correct for the Magistrate to say that he was no longer competent to decide the question on the merits because there was no imminent danger of a breach of the peace. Section 147 does not require such imminent danger for its application, for "a dispute likely to cause a breach of the peace regarding any alleged right of user of any land or water..."is enough for initiating proceedings under the section.

The learned advocate has further pointed out that as the river Nata runs only during the rainy seasons, the dispute was of the kind specifically referred to in the proviso to Sub-section (2) of the section namely a dispute regarding a right exercisable only at particular seasons or on particular occasions. The bund would only be required in the rains and could only be made pucca in the dry season, and proceedings had in fact been commenced u/s 144 in April and u/s 147 in June. Nothing had happened since then to improve the relations of the parties; on the contrary the willingness of the second party to accept the compromise suggested by the Magistrate and the failure of the first party to do so could only have aggravated the situation.

In dropping the proceedings moreover, the learned Magistrate indirectly made an order against the first party by observing that since they refused to compromise, they would have ample time to go to the civil Court and get their rights defined there.

The inquiry u/s 147 is to be conducted in the manner provided in Section 145, and Sub-section (5) of Section 145 provides that nothing in the section shall preclude any party from showing that no such dispute as led to the initiation of the proceedings exists or has existed and that in such case the Magistrate shall cancel his initial order. It cannot be said that the order passed by the Magistrate was in the spirit of this provision at all.

The learned advocate who appears for the second party has endeavoured to support the order by urging that the Magistrate was entitled to drop the proceedings at any time if he was satisfied that no breach of the peace was likely at the time. But it is to be remembered that the dispute in the present case relates to a right exercisable only at particular seasons and it cannot be the law that when such a dispute arises it is open to the Magistrate to start a proceeding u/s 147 not only to drop it when the season is over but in addition to pass an order against one of the parties which could only be properly passed after hearing all the evidence that the parties may desire to produce in the case.

It is true, as contended by the learned advocate for the second party, that whether a dispute is likely or not is a matter for the Magistrate and not for this Court. That is clear from the terms of such sections as 144,145 and 147 but where a Magistrate is satisfied that a dispute requiring to be dealt with under these sections does exist, it is clearly necessary that he should proceed with the matter in accordance with the law, and this Court cannot permit him to abuse the procedure by dropping the proceedings on an untenable ground and indirectly passing an order which he could not directly have passed without hearing all the evidence.

The order in question must therefore be set aside and the Magistrate directed to proceed in accordance with the law and pass a proper order under the section under which he was exercising his jurisdiction.