Muhammad Amirkhan and Others vs Mahalingam Pillai and Others

Curgenven, J.—This is a Criminal Revision Petition arising out of proceedings taken u/s 147 of the Code of Criminal Procedure in which the

question which arose was whether the Hindu community were entitled to use a certain street, such user being resisted by the Muhammadans who

live in that locality. The learned Sub-divisional Magistrate found that the street was a public one, and the first question raised is whether Section

147 of the Code of Criminal Procedure has application in such circumstances. There is very little case-law upon this subject. In Kolandai Nayakan

v. Karabudda Savudri (1896) 6 MLJ 193, which was under the old Code, application of the corresponding section was considered to be open to

question. In Sndalaimuthu Chettiar v. Enan Samban 31 IndCas 367 and Karuppanna Goundan Vs. Kandaswami Goundan and Others, , on the

other hand, it was held that there was nothing in the language of the section which precluded its application to similar circumstances. In re

Narayana (1883) I LR 7 M 49 related to Section 532 of the Code of 1872, which was drafted in quite different terms, and the decision therefore

affords no guide. I do not find anything in the section as now amended by the Code of 1923 to render the two decisions which I have referred to

inapplicable. The Magistrate has to satisfy himself that there exists ""a dispute likely to cause a breach of the peace regarding any alleged right to

user of any land or water as explained in Section 145, Sub-section (2) whether such right is claimed as easement or otherwise."" Sub-section (2) of

Section 145 merely lays down that the expression ""land or water"" includes buildings, markets, fisheries, crops or other produce of land and rents

or profits of any such property. That does not in my view make the expression ""land or water"" as used in Section 147, necessarily refer only to

private property though of course it does necessarily so refer in Sub-section (1) of Section 145. The learned Counsel for the petitioners has

advanced certain other arguments with the design of showing that the section is not appropriately worded for such a case as this, but after giving

them due weight I do not feel disposed to differ from the view that has previously been taken by this Court. I think therefore that the Sub-divisional

Magistrate was not wrong in having recourse to this section.

It is then said that he did not satisfy himself that a breach of the peace was threatened, but, I think, it is clear from several passages in his order

that he had this probable risk in view throughout, and although at one stage the parties entered into a compromise yet the Hindus immediately

resiled from it and that circumstance certainly does not show that the danger of such a breach was absent. The actual directions, which the Court

gave, are contained in paragraphs 23 and 24 of its order where the Magistrate says that the Hindus must be allowed to pass through the street with

Mulapari, which refers to the particular case of the procession which they wished to take and, more generally in paragraph 24, that the

Muhammadans are prohibited from interfering- in any manner with the use of the Hindus of the street. It appears to me that this is an order which

can be legally passed u/s 147. That section contains a proviso that the right asserted must have been previously exercised, and the Court appears

to me to have found both generally that the Hindus used the street and particularly that they had taken the procession during the previous season.

The order seems to me to amount to no more than a finding that the street is a public one and a declaration of the ordinary-legal rights of the

Hindus as members of the public. This order was taken up in revision to the District Magistrate and he refused to interfere with it. I agree with his

view and accordingly dismiss this petition.