The Magistrate has the power to direct the removal of an obstruction under Section 147(2) of the CrPC in cases where interference has taken the shape of physical obstruction.

ORDER :-

This revision petition by Digendra Kumar Deb arises out of an application made by Tarani Charan Dey. under S.147 of the Criminal P.C., praying that Digendra Kumar Deb be directed to remove obstruction in the shape of a fencing set up by him over a public pathway which he (Tarini Charan Dey) had been using for egress from and ingress to his homestead situate on the west of that pathway. The preliminary order was passed on 8th August 1960. After perusing the written statements filed by the parties and going through the evidence led by them, Shri S.C. Das, Magistrate first Class, Kailashahar, passed the final order on 23rd April 1962, holding that public road runs over the enclosed part of the land, that Tarini Charan Dey had been exercising his right of way over that public road within three months next preceding the preliminary order, and that the action of Digendra Kumar Deb in obstructing the pathway was likely to result in breach of peace. The Magistrate, therefore, directed the removal of the fencing set up by Digendra Kumar Deb and prohibited him from causing any obstruction in exercise of the right of pathway by Tarini Charan Dey. A period of 15 days was given to Digendra Kumar Deb for removal of the fencing and he was also called upon to pay Rs. 10/- by way of costs to Tarini Charan Dey.

2. Having felt aggrieved with the order of the Magistrate, Digendra Kumar Deb filed a revision petition in the Court of the Sessions Judge. That petition came up for hearing before Shri S.B. Laskar, the Additional Sessions Judge, who, by his order dated 7-6-1965, dismissed the same on confirming all the findings reached by the Magistrate. The present revision petition under S.439 and S.561A of the Code is directed against the order of Shri S.B. Laskar.

3. Shri N.L. Choudhury, appearing for the petitioner, canvassed three points to support the contention that the order made by the Magistrate and confirmed by the Sessions Judge is bad in law and so has to be quashed. Firstly, it was urged that the proper course for the Magistrate to follow in the circumstances of the case was to proceed under S.133 rather under S.147 of the Code. The next point taken was that while exercising power under S.147 the Magistrate had no jurisdiction to direct removal of the obstruction set up by Digendra Kumar Deb over the disputed piece of land. Lastly, it was contended that an order for costs is wholly unjustified in respect of proceedings under S.147.

In fairness to Shri Choudhury it must be stated that he was also critical of the findings, reached by the two Courts below, that a public road runs through the land over which Digeendra Kumar Deb is alleged to have set up the fencing and that Tarini Charan Dey had been using that pathway for going to and coming out of his homestead. This criticism of Shri Choudhury is without merit, it is proved front the statements of the witnesses examined by Digendra Kumar Deb himself that a public road runs through the area fenced by Digendra Kumar Deb. (His Honour then discussed the evidence and proceeded. Hence, I overrule the objection of Shri Choudhury that the Magistrate and the Sessions Judge had gone wrong in holding that a public road runs over the land in dispute and that Tarini Charan Dey had been using that road for going to and coming out of his house on its west. Moreover, the concurrent findings of the Courts below to that effect, founded as they are on dependable evidence, cannot be assailed in this revision petition.

4. The contention of Shri Choudhury that the Magistrate would have been well advised to take recourse to the provisions of S.133 in preference to those of S.147 is equally untenable. It is correct that provisions of the two sections cover common field to the extent that they embrace cases of nuisance over public paths and roads.

However, S.147, in addition, also embraces cases of the nature of private nuisance for it includes, inter alia, a case involving infringement of the right of easemen