A Magistrate passing an order under Section 147, Criminal Procedure Code, is required to find exercise of the right in dispute within the time as given in the proviso.

Banerji, J.

1. This application is directed against an Order of a 1st Class Magistrate of Bhabua prohibiting the petitioners from interfering with the right of way claimed by the opposite party over certain plots. It appears there is a well in plot No. 801 and the opposite party claimed a right of way over the disputed plots to go and fetch water from the said well.

2. Mr. Hafinandan Singh, appearing on behalf of the petitioners, has urged two points against the order. His first contention is that, on the admission of witness No. 2 for the opposite party, the path through the disputed plots had been closed since July 1951 and, as the enquiry under Sec.147, Criminal P. C., was instituted on 15-11-1951, when both parties showed cause, the order of the learned Magistrate was without jurisdiction as, according to the proviso to Sub-section (2) of Sec.147, the right of way was, admittedly, not exercised within three months from that date. It appears from the order-sheet of this case that even on 8-8-1951, the Sub-divisional Officer was waiting for the report of the police with respect to this dispute between the parties. Therefore, it can fairly be presumed that the learned Subdivisional Officer had already acted on the dispute regarding the right of way claimed by the opposke party and had asked the police to enquire and report about the matter. It would appear, therefore, that, as the matter was under enquiry, the opposite party were not in a position then to exercise their right of way which they claimed. In Sohan Lohar V/s. Jiutupadhya, AIR 1930 Pat 291 (A), Wort J., depending on the

decision in -- Ram Chandra Acharjee V/s. Aditya Chandra, AIR 1926 Cal 1051 (B), held that the enquiry contemplated by the proviso to Sub-section (2) is the enquiry referred to in Sub-section (1) which means the date on which the parties are heard and evidence is taken and adjudicated upon. If this decision is accepted as laying down a correct proposition of law, then the bar of limitation of three months laid down in the proviso to Sub-section (2) woud refer back to 5-10-1951, and in any case not earlier because I find from the order-sheet that it was on 5-12-1951, that the learned Magistrate examined the first batch of witnesses. In that case, there can hardly be any doubt that the order of the learned Magistrate would be without jurisdiction.

In Bhagawan Swain V/s. Mathuri Swain, AIR 1930 Pat 349 (C), however, a Division Bench of this Court dissented from that view, and it was held that the words "institution of the enquiry" in the proviso to Sub-section (2) of Sec.147 did not mean the date of the drawing up of the formal proceedings under Section 147, but it meant the date on which the complainant first brought his grievance to the notice of the Magistrate either directly or indirectly through the Police and the Magistrate took action with a view to enquiring into the allegations although that enquiry was merely preliminary to the eventual institution of a formal proceeding. Their Lordships relied on the decision in -- Rama Nath Basu Choudhury V/s. Sarada Prosad, 44 Cal LJ 214 (D), and Scroope J., while agreeing with the views expressed by Courtney-Terrell C. J., pointed out as follows:

"The proviso is one relating to limitation, and it would be very unusual to make, as it were, limitation run backwards instead of forward, that is to say, from the date on which the Court draws up formal proceedings instead. of from the date on which the complainant brings his grievance to the notice of the Court either directly or indirectly through the police."

It was observed in the Calcutta case that, if the institution of the enquiry meant the date when the formal proceedings were drawn up under the section, this interpretation would make its working difficult. It was observed by Courtney-Terrell C.J. that, if the words "institution of the inquiry" meant the date of the ultimate order, it would be impossible for the party who had alleged that he had