Sk. Khoda Bux And Ors. v. Mozharul Haque And Ors. Opposite Party

The Judgment of the Court was as follows:—

Bartley, J.:— This Rule was issued on the District Magistrate of Maldah and the Opposite Party to show cause why certain proceedings under sec. 147 of the Code of Criminal Procedure pending against the second party in the Court of the Sub-Divisional Officer of Malda should not be quashed or such other or further orders should not be made as to this Court might seem fit and proper.

It appears that there was a dispute between the parties regarding a certain piece of land alleged by one side to be a public village path. Upon an allegation that this path had been obstructed and converted into a private property a petition was made to the Magistrate for investigation and action.

After some preliminary investigation the Magistrate, holding that the path in question had been obstructed and that there was an apprehension of breach of peace, directed proceedings to be drawn up under sec. 147 of the Code of Criminal Procedure and further passed an order purporting to be made under sec. 147(2) of the Code of Criminal Procedure prohibiting the second party from interfering with the right of the first party until the matter was finally decided.

In so far as the Rule is directed to the quashing of the entire proceedings it must be discharged. Upon the findings of the learned Magistrate he undoubtedly had jurisdiction to institute such proceedings.

It is clear, however, that the order purporting to be made under sec. 147(2) of the Code of Criminal Procedure, prohibiting interference with the existing rights pending decision in the matter is not a legal order. Sec. 147(2) contemplates a final order made after due enquiry in the manner provided for by that section and does not justify an interlocutory order of the nature actually made by the learned Magistrate.

In the result the Rule must be made absolute to the extent that the portion of the learned Magistrate's order prohibiting interference with the rights of the first party until final decision, is set aside.

The proceedings as originally initiated will stand and the learned Magistrate will proceed to decide the question before him in the manner provided by law.

Should it appear to him to be necessary to pass an ad interim order of any kind he may do so in the manner provided by sec. 145, cl. (4), proviso (2) of the Code of Criminal Procedure. In the result the Rule is made absolute to the extent indicated above.

Lodge, J.:— I agree.

C.C