The main legal point established in the judgment is the interpretation of Section 147 Cr. P. C. and the jurisdiction of a Magistrate to pass a mandatory order under this section.

( 1 ) THIS is a revision petition filed by the Petitioner against the order dated 9-4-1958 passed by the District Magistrate, Belgawn, in Criminal Revision Application No. D. C. /mga--4329, setting aside the order passed by the Sub-Divisional Magistrate, Belgaum City dated 30-10-1957 in Criminal Mis. Case No. 4 of 1956. In order to appreciate the arguments advanced, it is necessary to mention the facts of the case which may be briefly stated as follows:

( 2 ) THE houses of the parties are adjacent to each other. It is stated that there are four windows on the second floor and two windows on the third floor of the petitioner's house. The house of the respondents, which is adjacent to the western wall of the petitioner's house, has a low roof and the windows of the petitioner's house are above its level. The petitioner made an application to the Sub-Divisional Magistrate, Belgaum City under Section 147 Cr. P. C. complaining that the respondents wrongfully and unanthorisedly obstructed the use of the user to the free light and air by scaffolding his windows with tin sheets and has been asked to remove the obstruction and that the Respondents were threatening the petitioner. He alleged that he has been having the user of the air and light through his windows since he purchased the house in 1919 and that the action of the opposite party was likely to cause breach of peace.

( 3 ) IT appears that immediately after the obstruction being caused by the other party, the petitioner had filed a complaint with the police which took the shape of proceedings under Section 107 of the Cr. P. C. In that proceeding, eventually, the Taluk Magistrate, Belgaum by his order dated 14-8-1956, bound over the opposite party, i. e. Respondents for a term of six months to maintain peace. Vide Exhibit 1 E. But, as the order of the Taluka Magistrate had not the effect of removal of obstruction, the petitioner made an application under Section 147 Cr. P. C. on 26-8-1956. The Sub-Divisional magistrate, Belgaum City issued a notice to the opposite party and after necessary enquiry, found that the windows had been used by the petitioner for several years past and he had the right to the use of air and light through them. He further found that it has been exercised by him within three months next prior to the institution of the proceedings and that the opposite party had recently caused obstruction by scaffolding the windows of the petitioner. He also found that the action of the opposite party was likely to cause breach of peace. He passed the following order: "i therefore direct under Section 147 Clause (2), Cr. P. C. that the interference unauthorisedly caused by party II in the exercise of right of user of the windows by party I should be prohibited by the removal of the tin sheets, I further direct that the removal of the tin sheets should be effected within a period of 15 days from the date of this order".

( 4 ) AGAINST this order of the Sub-Divisional Magistrate, the opposite party (respondents) made an application in revision to the District Magistrate, Belgaum, who was, however, of the view that the right claimed by the petitioner had not been exercised within three months prior to the institution of the proceedings under Section 147 Cr. P. C. and that Section 147 Cr. P. C. did not empower the Magistrate to pass a mandatory order directing removal of the obstruction; he passed the following order: "in the end, subject to any final order that may be passed by the Civil Court, I prohibit the respondent from taking law into his own hands and interfering with the scaffolding put up by the revision applicants. Likewise. I prohibit the revision applicants from making any addition or alteration to the existing obstructions. There shall be no order as to costs".

( 5 ) AGAINST this order of the District Magistrate, Belgaum, the petitioner has preferred this revision Petition before us.

( 6 ) IT has been argued on behalf of the petitioner that Section 438-A, C

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