SUBAL SAHU Vs. STATE

JUDGEMENT

(1.) I Petitioners are members of the second party. Opposite parties 2 to 6 are members of the first party. The case of the first party members is that in village baku Jainebad, there is a tank on plot No. 139 in Khata No. 116 with an area of 0. 73 acre recorded as 'anabadi' They claim eight annas interest in the tank and title in it on the basis of a settlement by the Anchal The petitioners assert that the tank belonged to the villagers and that they had right of user of water and fishery the learned Magistrate started a proceeding under Section 107 Cr. P. C. (hereinafter referred to as the Code) against the petitioners and not against the members of the first party. He also passed an order under Section 117 (3) of the code calling upon the petitioners to furnish interim bond. Against this order, the revision has been filed.

(2.) MR. Misra raised two contentions:

(3.) SECTION 147, Sub-section (1) of the Code lays down that whenever any District magistrate, Sub-Divisional Magistrate or Magistrate of the first class is satisfied, from a police-report or 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 as explained in Section 145, Sub-section (2) whether such rights be claimed as an easement or otherwise, within the local limits of his jurisdiction, he may make an order in writing stating the grounds of his being so satisfied and requiring the parties concerned in such dispute to attend the Court in person or by pleader within a time to be fixed by such Magistrate and to put in written statements of their respective claims, and and shall thereafter inquire into the matter in the manner hereinafter provided it is the common case of the parties that the present apprehension of breach of peace exists regarding fishery right and user of water in the tank. The learned magistrate should have more appropriately started a proceeding under Section 147 of the Code and would have proceeded to make an enquiry as prescribed therein