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Judgment
The contention of the appellant (see the 3rd ground in the appeal memorandum) is that because on the 20th November 1912 an order had been
passed by a 2nd class Magistrate u/s 144 of the Cr.P.C. prohibiting the other party going through the old pathway in the appellant''s land there was
no likelihood of a breach of the peace on 25th November 1912 and hence the proceedings of the Sub-Divisional Magistrate taken u/s 147 (the
proceedings having been begun on 25th November 1912) were without jurisdiction.
But if the Sub-Divisional Magistrate really thought that notwithstanding the order u/s 144 of the Crl.P.C. (passed within a week before his taking
steps u/s 147 of the Crl.P.C.) the likelihood of a breach of the peace still existed, we do not think that it could be argued that the Magistrate was
legally incompetent to entertain such, a thought and hence was legally incompetent to take action u/s 147. No doubt, we, as a court of revision,
might interfere if we consider that his apprehension was quite unreasonable but we are not satisfied that it was so unreasonable.
The next contention is that as the appellant had obstructed the pathway by a fence the Magistrate had no jurisdiction u/s 147 of the Cr.P.C. to
order the appellant "" not to obstruct"" the pathway which order is tantamount to a direction that the appellant shall pull down the fence. The case of
In re Lindsay ILR (1881) M. 121 and the case of Latchmiah Maistry In re (1893) 1 Weir 143 are relied on for the above contention. In In Re
Lindsay ILR (1881) M. 121 it was held that where the obstruction to the path was a permanent one consisting of a wire fence, a trench and a wall
and the order of the Magistrate was passed exparte without due inquiry such an order was not a proper order to be passed under the old Section
533 (corresponding to Section 147). The learned Judges held that the proper course was to take action under the sections relating to public
nuisances (Chapter X of the present Code). That case might be distinguished on the ground that the obstruction in this case was a flimsy fence but
whether it is so distinguishable or not we are not prepared to follow it if it was intended to decide therein that the fact that Section 133 of the
Crl.P.C. expressly provides for an order by the Magistrate directing the removal of obstruction to pathways necessarily implies that a similar order
cannot be passed in proceedings taken u/s 147 of the Crl.P.C. The same remark applies to the similar Obiter dictum in Latchmiah Maistry In re
(1893) 1 Weir 143.
We do not think that the doubts entertained in some cases whether Section 147 of the Crl.P.C. can be applied when the right of way claimed is
a right to a public path and not a private path have any sustainable foundation. The terms of the section are wider enough to cover such disputes
also.
Finally we might state that revision under Sections 435 and 439 of the Cri. P.C. is a matter of discretion (that is, this Court is not bound to
interfere even if the Magistrate''s order sought to be revised was an illegal order) and it would require a very strong case for a Letters Patent
appeal to succeed against the decision of a single Judge of this Court refusing to interfere in revision.
We therefore dismiss the appeal.