1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 91 of 2005. Judgment reserved on: 12.08.2008. Date of Decision: August 21, 2008. ____________________________________________________________ Balak Ram. Petitioner. Versus Rasil Singh and others. Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Petitioner : Mr. Ashwani Sharma, Advocate. For the respondents : Mr.K.C. Rana Sr. Advocate with Mr.Rajesh Mandhotra, Advocate, for respondents No.1 & 2. Mr. Vivek Thakur, Addl. Advocate General with Mr. Anil Jaswal, Deputy Advocate General, for respondent No.3. ______________________________________________________________ Surjnder Singh, J. By means of this petition preferred under Section 482 Code of Criminal Procedure, read with Article 227 of the Constitution of India, the petitioner has challenged the order dated 15.7.2005 passed by the learned Additional Sessions Judge (1), Kangra at Dharamshala, dismissing his revision petition filed against the order dated 23.7.2003, passed against him by the Sub Divisional Magistrate, Jaisinghpur, District Kangra in Case No.7/IV/2003 under Section 147 of the Code of Criminal Procedure, in short the Code. The facts giving rise to the present petition can be stated thus. On 13.1.2003, the respondents No.1 and 2 herein moved a complaint under Section 133 of the Code in alternative prayed action Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 under Section 147 of the Code for issuing appropriate direction directing the petitioner herein to remove the obstruction caused by him in the exercise of right of user of public path, situated in Khasra No.1041 in portion A to A and B to B of the tatima enclosed, in Mohal Solebanehar, Mouza Labagaon, Tehsil Jasinghpur, District Kangra, H.P. by putting into its original shape/position by constructing a protection wall and prohibiting him from causing any obstruction or interference with the exercise of such right of applicant and public in general. On 17.3.2003, the application was put up by the Sub- Divisional Magistrate, for regular hearing. The complainant/respondents were present alongwith the counsel and straight away a notice under Section 147 of the Code was ordered to be sent to the respondent without recording any satisfaction about the existence of breach of peace and the case was fixed for presence of the petitioner on 27.3.2003. Petitioner herein, submitted his reply and raised the preliminary objections about the maintainability of the complaint and on merits denied the allegations regarding raising of construction over the path and causing any obstruction. According to the petitioner, he had raised the construction over his own land bearing khasra No.1042 about 25 years ago and not recently as alleged. The rejoinder to the reply was also filed. Thereafter the case was straight away fixed for the evidence of the parties. Both the parties examined themselves and also produced their witnesses. On 11.6.2003, after the closure of the evidence of the parties, the Sub 3 Divisional Magistrate sought the report of Tehsildar regarding the spot. On 27.6.2003, report of the Tehildar was received. The arguments were heard and the impugned order was passed on 23.3.2003 whereby it was held that the petitioner herein had caused damage to the alleged path and he was directed to provide the necessary ‘danga’ along the path so that the damage caused to the path is prevented and the obstruction caused due to the damaged path be removed by providing this danga within 7 days of the passing of the order. The order aforesaid was assailed in the revision petition before the learned Sessions Judge, which was heard and dismissed by the learned Additional Sessions Judge (1), vide his order dated 15.7.2005 and now the petitioner has raised the vital question in this petition that the learned Sub Divisional Magistrate assumed the jurisdiction which was not vested in him and further that he committed a grave error of law in not adopting the proper procedure and evidence on record. Further, the directions given to the petitioner in the matter aforesaid were beyond the purview and his authority, while considering the matter under Section 147 of the Code and the learned Additional Sessions Judge wrongly upheld the said order which was passed without application of mind by the Sub- Divisional Magistrate. Shri Ashwani Kumar Sharma, learned counsel for the petitioner has vehemently argued that the Sub Divisional Magistrate wrongly assumed the jurisdiction under Section 147 of the Code on 4 the application filed by the respondents, for the reasons that there was no allegation of breach of peace nor born out from the record and he did not adhere to the procedure, as envisaged under Section 147 of the Code. Further the Sub-Divisional Magistrate was also not competent to pass the final order in the manner it was passed. Therefore, there are grounds to interfere with the orders passed by the courts below. Contra, learned counsel for the respondents has supported the impugned orders and submitted that there was no error of jurisdiction or abuse of process in any manner. I have given my thoughtful consideration to the rival contentions of the parties and have perused the record. Section 147 of the Code reads as under:- “Dispute concerning right of use of land or water.--- (1) Whenever an Executive Magistrate is satisfied, from the report of a police officer or upon other information, that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land or water within his local jurisdiction, whether such right be claimed as an easement or otherwise, he shall make an order in writing, stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend his Court in person or by pleader on a specified date and time and to put in written statements of their respective claims. Explanation.- The expression “land or water” has the meaning given to it in sub-s(2) of s.145. [Emphasis mine] (2) The Magistrate shall then peruse the statements so put in, hear the parties, receive all such evidence, as may be produced by them respectively, consider the effect of such evidence, take 5 such further evidence if any, as he thinks necessary and, if possible decide whether such right exists; and the provisions of s.145 shall, as far as may be, apply in the case of such inquiry. (3) If it appears to such Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right, including, in a proper case, an order for the removal of any obstruction in the exercise of any such right: Provided that no such order shall be made where the right is exercisable at all times of the years, unless such right has been exercised within three months next before the receipt under sub-s (1) of the report of a police officer or other information leading to the institution of the inquiry, 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 receipt. (4) When in any proceedings commenced under sub-s (1) of s 145 the Magistrate finds that the dispute is as regards an alleged right of user of land or water, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-s (1): and when in any proceedings commenced under sub-s(1) the Magistrate finds that the dispute should be dealt with under S 145, he may, after recording his reasons, continue with the proceedings as if they had been commenced under sub-section (1) of section 145.” A careful perusal of the above provisions show that Section 147 of the Code has the same object as of Section 145 of the Code. The existence of a dispute likely to cause breach of peace is the very foundation and basis of a Magistrate’s jurisdiction in both the sections. Section 145 of the Code applies to the dispute about the possession of the land itself and the Section 147 of the Code applies where there is a dispute about the right of a particular use of land or water claimed as an easement or otherwise. 6 First the Magistrate has to satisfy himself either from the police report or upon other information and such satisfaction must be subjective, if there are good reasons for the Magistrate not being satisfied the satisfaction cannot be thrust upon him by any means. However, the Magistrate’s satisfaction must be based upon some material placed before him and he is under obligation to draw a formal order recording his satisfaction, or such material. In the instant case, neither the Sub-Divisional Magistrate has recorded his subjective satisfaction nor there is any reference to the existence of the breach of peace which is sine quo non. Rather the Sub-Divisional Magistrate appears to have taken the cognizance as if it was a non-cognizable case, thus mechanically and in a routine manner ordered to issue a notice in terms of Section 147 of the Code. In fact, law enjoins that the Executive Magistrate should be satisfied that a dispute is likely to cause the breach of peace unless he comes to this conclusion, his further action i.e. regarding the issuance of notice which is called a preliminary order would not be legal. In the proceedings under Section 147 of the Code, the mode of inquiry is exactly the same as under Section 145 of the Code. The Sub Divisional Magistrate was obliged to invite the written claims of respective parties and to take all such evidence as may be produced before him. The inquiry must be judicial one and any final order passed without a proper enquiry would be illegal. No final order can 7 be passed under this section without following the procedure laid down in this section. In the instant case, the S.D.M. also did not determine whether such a right as claimed by the respondent ever existed. It was only then he could have resorted to the provision of sub-Section (3) of Section 147 of the Code prohibiting any interference with the exercise of such right, and could have ordered to remove any obstruction in exercise of such right but he is absolutely not competent to order for the reconstruction of a Danga. This mandate could only be issued by the civil court of competent jurisdiction. It was also incumbent upon the Sub Divisional Magistrate to give the clear finding whether the right claimed by the respondent was exercised by him within three months next before the receipt of the application filed by the respondents leading to the institution of the inquiry in terms of the proviso added to sub section (3) of Section 147 of the Code. The order of the Sub Divisional Magistrate is also bad for the reasons that it did not say that it was to operate until there is a decision of a competent civil court, rather he ordered for the construction of the danga which was beyond the scope of the powers conferred upon him by Section 147 of the Code. In the facts and circumstances of the case, it is manifest that the essential conditions laid down in Section 147 of the Code were not satisfied right from its very inception. The report of the Tehsildar about the spot is of no consequence. Neither it says about the dispute likely to cause breach of peace, nor he was examined to 8 substantiate his report, which has denied the fair opportunity to aggrieved party. The upshot of the entire discussion is that neither the Sub Divisional Magistrate could have assumed the jurisdiction in absence of the existence of breach of peace nor he could have issued the preliminary order without the subjective satisfaction regarding the existence of breach of peace without any material before him and further the existence of the right of user was also not made out from the evidence on record before him in terms of Section 147 (3) of the Code, therefore, the final order as passed by the Sub-Divisional Magistrate cannot be allowed to sustain. The learned Additional Sessions Judge did not appreciate the above facts and law applicable to it in the right earnest, therefore the final order of the Sub Divisional Magistrate Jaisinghpur, District Kangra passed in Case No.7/IV/2003 and affirmed in revision Petition No.15-P/2004 by the learned Additional Sessions Judge, (1) Kangra at Dharamshala both are unsustainable and hereby set-aside. Consequently, the petition under Section 147 of the Code stands dismissed. Send down the records. August 21, 2008. (Surinder Singh) ( Pds ) Judge.