RAMESH AND ORS. Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE main and important question in this revision petition which is directed against the order dated 14th Sept, 1989 of the learned Sub -Divisional Magistrate, Hindaun, is as, to whether in proceedings Under Section 147 Cr. PC any interim order can be made?

(2.) MEWASI and others filed) an application Under Section 145 Cr. PC in the court of learned SDM, Hindaun where in it was stated that in village Dhandhawali there is a public pond in Khasra No. 893, present No. 1002 measuring two hectarea and since time immemorial the cattles of the village were drinking water from the pond The non -petitioners (petitioner complainants) wanted to cultivate their fields from that pond and wanted to obstruct the cattle from drinking water. In safeguarding the pond, the petitioner wanted to make a wall around that pond. It was stated that in case the non -petitioners (petitioner here in) were successful in taking possession of the pond then the cattle of the village will be deprived of taking water and may die. It was also stated that there was apprehension of breach of peace. On the said complaint, the learned SDM mentioning that he was satisfied from the contents of the complaint, ordered that it be registered. He also ordered as under: ...[VERNACULAR TEXT COMITTED]...

(3.) IT is well settled that the action taken Under Section 147 Cr. PC is of an emergency nature. This court in the case of Manak Chand v. State of Rajasthan, RLW 1968 300 has said that Section 147 Cr. PC. relates to dispute pertaining to right of user of immovable property and empower the Magistrate to pass temporary order unless the right of the parties are decided by the civil courts. The learned Counsel placed reliance on the case of Krishna Das Agarwal and another v. Deen Dayal Agarwal , a ruling of the Patna High Court where in the court has said that there is no provision in Section 147 for any interim prohibitory order restraining the rightful owner from exercising his rights of ownership and possession. This Section does not contemplate that any order of restraint upon the rightful owner be passed before the right of user set up by another person is duly established at the inquiry. It appears that in that case the dispute was with regard to the right - of user of land in the shape of a free passage of light and AIR which is not beyond the purview of Section 147 Cr. PC. The court also said that the provision does not empower of making any interim prohibitory order restraining the rightful owner from exercising his rights of ownership and possession. A look at Section 147 Cr.PC is necessary and a perusal of that Section will show that it only deals with the right of user of any land or water and when ever the Magistrate is satisfied from the report of a Police Officer or upon other information, that a dispute likely to cause a breach of peace exist regarding any such right within his local jurisdiction, whether such right be claimed as an assessment or other -wise, 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. The procedure for an inquiry Under Section 147 Cr.PC. is contained in sub -sees (2) and (3) of that Section. Under Sub -section (2) of Section 147 Cr. PC the Magistrate is required to peruse the statements so put in, by the parties Under Section ub -Section (1) of Section 147 Cr. PC, hear the parties, receive all such evidence as may be produced by them respectively; consider the effect of such evidence, take such further evidence and if possible decide whether such right exists, in an inquiry Under Section 147 Cr. PC a provision of Section 145 Cr. PC so far as may be applied. If it appears to the Magistrate that such rights exist, he may make an order prohibiting any interference with the exercise of such right Therefore, there can be no dispute that a final order could only be made after an inquiry is made as aforesaid. But the question again is as to whether any interim order can be made or not?