A Magistrate cannot order the removal of an obstruction under Section 147(2) of the Code of Criminal Procedure.

U.N.Sinha, J.

1. By an order dated the i9th December, 1960, the learned Sessions Judge of Patna has made a reference to this Court, recommending that a part of the order of Sri K.G. Hazari, Magistrate, 1st Class, Patna, dated the 1st March, I960, by which he has directed the second party to remove a wall to the extent of 5 feet from north to south may be set aside. The facts mentioned by the learned Sessions Judge in making the reference are as follows: Between plots No. 1743 and 1745 in village Bahadurpur, Police Station Phulwari, in the district of Patna, there exists a lane. According to the first party, this lane was 7 feet wide and he had a right of passage over this lane. The second party denied the right of the first party altogether. According to the second party, further, there was a lane which was only 2 feet wide. It appears that there was a proceeding under Sec.144 of the Code of Criminal Procedure, which was started on the 1st June, 1959. Ultimately, on the 24th July, 1959, this proceeding was converted into one under Sec.147 of the Code of Criminal Procedure. At the time of the hearing of the case before the learned Magistrate, it appeared that the second party had already constructed a wall to the extent of 5 feet on the lane in question It was contended by the first party that this lane had been constructed during the pendency of the proceeding under Section 147, whereas the second party contended that the wall was in existence for a very long time.

Upon a consideration of the materials on record, the learned Magistrate held that the first party had the right of using the lane between these two plots for the purpose of taking his cattle to his Dalan and for going to his Dalan. According to the learned Magistrate, the lane was 7 feet wide, of which 5 feet had been blocked by the second party recently during the pendency of the proceeding. Therefore, the right of the first party was declared by the learned Magistrate by his order dated the 1st March, 1960 and the concluding portion of the order runs thus: "In view of the facts discussed above, I declare the right of use of galli and passage between plot Nos. 1743 and 1745 in village Bahadurpur P. S. Phulwari by 1st party Ram Bachan Singh and further order for removal of the obstruction wall to the extent of 5 from north to south from the south. I further forbid all disturbances to such usage until ordered otherwise by competent court of law". The learned Sessions Judge has recommended that the order of the learned Magistrate for the removal of the wall to the extent of 5 feet from north to south may be set aside as the learned Magistrate could not order such removal under Sec.147(2) of the Code of Criminal Procedure.

2. We have heard learned counsel for the parties and the learned counsel appearing for the second party has supported the reference made by the learned Sessions Judge and has relied upon a decision of this Court in the case of Chaturgun Turha V/s. Jemadar Mian, 1961 BLJR 350. Learned counsel for the first party has, on the other hand, urged that the instant case will not be governed by the principle decided in Chaturgun Turhas case, inasmuch as the obstruction made by the second party had come into existence during the pendency of the proceeding under Sec.147. It is also urged that Chaturgun Turhas case is distinguishable, as in that case, the party at fault had been ordered to remove the obstruction caused, on the threat of prosecution under Sec.188 of the Indian Penal Code, whereas no such order has been passed in the instant case, directing the second party to remove the obstruction. It is contended on behalf of the first party that impliedly, the first party has been permitted to remove the obstruction caused by the second party, and if not, the declaratory part of the order of the learned Magistrate may be remodelled by incorporating an order, to the effect, that the first party will be permitted to remove the obstruction. In my opinion,