JUDGMENT
1. This Rule was issued against an order passed by the Deputy Magistrate of Faridpur under Section 147, Cr.P.C. on two grounds : (1) That the learned Magistrate acted without jurisdiction in drawing up proceedings under Section 147, Cr.P.C., after having ordered issue of notice upon the second party under Section 107, Cr.P.C. (2) that the learned Magistrate acted without jurisdiction in drawing up a proceeding under Section 147, Cr.P.C., because more than three months had expired between the date of the alleged obstruction on the 14th February, 1925, and the date of the institution of the proceeding on the 3rd August, 1925. We have heard the parties on the second ground mentioned above, as, if that is decided in favour of the petitioner, it will not be necessary to enquire into the first ground. A petition was filed by the first party on the 14th February complaining of obstruction of a pathway by the second party. On the 15th February, 1925, on that “petition the Magistrate passed the following order: “To Elaka Police for enquiry and report by the 5th March, 1925.” The report by the Police was submitted on the 26th May, 1925. On the 14th July the Magistrate passed the following order on the body of the petition : “Issue notice on Ram Chandra Acharjee to show cause why he should not be dealt with under Section 107, Cr.P.C. Fix 3rd August” On the 3rd August the following order was recorded : “Issue the notice ordered on 14th July. Fix 28th August.” On the 20th August the order passed was–“Heard parties and seen documents. Draw proceedings under Section 147, Cr.P.C. fixing 7th September.” The case was subsequently transferred to another Magistrate who recorded the evidence and passed an order on the 29th October, 1925, prohibiting the second party to interfere with the exercise of the right claimed by the first party under Section 147, Cr.P.C. Against this order an application was made to the Sessions Judge of Faridpur who declined to interfere. It appears that the only ground which was urged before the learned Sessions Judge was that the proceedings started on 20fch August were without jurisdiction inasmuch, as more than three months had elapsed from the date of the obstruction. The learned Judge was of opinion tint the enquiry was really instituted on the 16th February (the date on which the Magistrate ordered the Police to enquire into the matter) “although formal proceedings were not drawn up with regard to this matter till the 20th August, 1925.” The same view has been urged before us by the learned Vakil who appears for the first party. It is argued that the enquiry was, as a matter of fact, instituted when the Magistrate passed an order upon the Police to report. We are unable to accept this contention. The first paragraph of Section 147, Cr.P.C., says that “whenever any District Magistrate or…Magistrate of the First Class is satisfied: that a dispute likely to cause a breach of the peace exists regarding any alleged right of user of any land…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…and to put in written statements of their respective claims, and shall thereafter enquire into the matter in the manner provided in Section 145.” The proviso to the second paragraph says that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the enquiry. The question that falls for determination relates to the meaning of the words “institution of the enquiry.” It is contended that the order passed by the Magistrate on the 16th February asking the Police to enquire and report must be taken as institution of the enquiry under the proviso. It seems to us that the order that was passed on the Kith February was upon the Police to satisfy itself and report not with regard to the alleged rights of the parties but apparently with regard to the existence of a dispute likely to cause a breach of the peace, because in drawing up proceedings the Magistrate has to state his reasons for holding that a likelihood of a breach of the peace exists; and for that purpose it is usual on petitions, of this nature to order “Police to enquire whether there exists a likelihood of the breach of the peace” and it is on the report of the Police that such likelihood exists that the Magistrate obtains jurisdiction to start proceedings under Section 147, Cr.P.C. Then again the word “enquiry” in the proviso has reference to the words “enquire into the matter” in the first paragraph. The enquiry that is contemplated there is enquiry by the Magistrate and not enquiry by the Police. Institution of the enquiry into the existence of the likelihood of breach of the peace must precede the enquiry into the respective: rights of the parties and the Magisterial enquiry is instituted when proceedings are drawn up by the Court under Section 147. It must, therefore, be held in the circumstances of this case that the enquiry was instituted on the 20th August, 1925. The obstruction complained of having taken place on the 14th February long before three months from the date when proceedings were drawn up, it must be held that, the Magistrate had no jurisdiction to proceed under Section 147, Cr.P.C. In this view the Rule must be made absolute and the order of the Magistrate of the 29th October, 1925, set aside.
