HEM CHANDRA BANERJI Vs. ABDUR RAHMAN

JUDGEMENT

(1.) THIS matter was referred for the decision of the Full Bench by a Division Bench consisting of Bartley J., and Lodge J., in these terms: "This rule was issued on the District Magistrate of Faridpur and the opposite party to show cause why an order made Under Section 147 (2), Criminal P. C, should not be set aside. The facts are that a path leading from the house of Abdur Rahman Mulla, the opposite party, to the public road passed over the lands of the petitioner, Hem Chandra Banerji. The opposite party claimed a right of public user over this path; petitioner objected, and finally closed the path by erecting a stable on it. Proceedings were taken Under Section 147, Criminal P. C. with the result that the Magistrate made the following order:

(2.) I am of the opinion that that part of the order which provides as follows, "I order that Abdur Rahman and his family may use the path and Hem Chandra Banerjee is prohibited to make any interference with the exercise of the right Of way of Abdur Rahman and his family", is correct in law, if not in grammar. I am further of the opinion that the following part of the order. "He (i.e., Hem Chandra Banerjee is further ordered to remove the stable from the path" is beyond the powers of the Magistrate Under Section 147 (2), Criminal P. C. It is one thing to make an order prohibiting the doing of an act, it is another to order the doing of an act. The subsection allows the former, but it does not allow the latter. The position seems to be somewhat similar to that dealt with by Rankin C. J. in - 'Emperor v. : AIR1931Cal263 . With regard to the cases that have taken the contrary view it is sufficient, in my opinion, to say that what the sub -section allows, the Magistrate may do and nothing else. If the aggrieved party wishes any fuller or further relief from the Courts the Civil Courts are open to him and the remedy Is a mandatory injunction.

(3.) I agree.