Sohan Lohar vs Jiutupadhya and Others

Wort, J.—This is a reference u/s 438, Criminal P.C., against an order recommending that an order made by the Magistrate on 22nd April 1929, u/s 147(3), Criminal P.C., be set aside.

In appears that an occurrence of some sort took place on 15th November 1928, in the nature of a petty assault which arose by reason of a dispute over an alleged right of way. The complaint lodged was sent for local inquiry and the result of the local inquiry was that the land over which the dispute arose was entered in the name of one Jiutupadhya, that an obstruction had been caused and that the right of pathway existed. There was also a statement that an assault was committed.

The Sub-Divisional Officer, as it appears from the letter of reference, considered the report and heard the parties and their pleaders on 12th January 1929, and asked for further report as to the likelihood of a breach of the peace. Oh 16th February the report of the police was considered, the complaint was dismissed and proceedings u/s 147, Criminal P.C., were instituted.

The Honorary Magistrate heard the case after a written statement had been filed and he came to the conclusion that as the alleged obstruction was beyond three months of the date of the institution of the inquiry, he had no jurisdiction to make an order u/s 147(2) but, at the same time passed an order u/s 147(3) of the Code.

The learned District Magistrate appears to be of the opinion that the Honorary Magistrate was wrong inasmuch as in the opinion of the District Magistrate the inquiry was commenced on 12th January within three months of the alleged obstruction. 12th January was the date on which the Sub-Divisional Officer heard the parties and their pleaders on the question of the complaint. In my opinion the learned District Magistrate came to a wrong conclusion when he decided that that was the date of the inquiry within the meaning of the section. Sub-section (1), Section 147, Criminal P.C., provides inter alia:

he may make an order in writing stating, the grounds of his being so satisfied and requiring the parties concerned in such disputes to attend the Court in person or by pleader

and shall thereafter inquire into the matter. It has been pointed out in the case of Ram Chandra Acharjee Vs. Aditya Chandra Pal, that the inquiry contemplated by the proviso to Sub-section (2) is the inquiry referred to in Sub-section (1); that is to say, the date on which the parties are heard and evidence is taken and adjudicated upon. With that view I am in agreement. Consequently the reference so far as Section 147(2) is concerned must be discharged.

I agree, however, with the view that the order of the Magistrate under] Section 147(3) is illegal and must be set aside. That order is to be made only in those cases in which it is shown that no right of way exists. Any inference to be drawn from the facts of this case is that such a right of way does exist, although I do not decide the question. In any event, the order of the Magistrate u/s 147(3), Criminal P.C., was bad in law and must be set aside. The view expressed by the District Magistrate, however, is equally wrong in the-sense that the obstruction did not take place within three months of the date of the enquiry.