( 1 ) THIS case has been referred by Raina J. under Sub-rule (2) of Rule 9 of Chapter I of the High Court Rules, for decision of the following questions:

(i) Whether under Section 147 (2) of the Code of Criminal Procedure the magistrate is competent to issue a mandatory injunction for the removal of the existing obstruction which is necessary for maintaining status quo and prohibiting the other party from interfering with the right of the aggrieved party, until the matter is decided by a competent Civil Court. (ii) Whether the view expressed by the Nagpur High Court in King emperor v. Abdullah, ILR (1949) Nag 388 = (AIR 1949 Nag 275) which was followed by this Court in State of M, P. v. Sheikh Ramzan, Criminal revn. No. 56 of 1966, D/- 28-9-1966, vide 1967 Jab LJ (SN) 48 is correct.

( 2 ) THE facts which have given rise to this reference are simple. An order under section 147 Cr. P. C. has been passed by the Sub-Divisional Magistrate P. R. Datar. in Misc. Cr. Case No. 183 of 1965 against Phodal and five others on the application of one Khema directing them to clear the way of Khema to his field No. 1347 from between the fields of Kh. Nos. 4346 and 4347 through the Medh. Phodal and four others went up in revision to the Sessions Judge. Bhind, against the order of the said S. D. M. and he concurred with the conclusions of the S. D. M. in holding that Khema has a right of way through the medh of Kh. Nos. 4346 and 4347 and also that the medh has been disturbed by Phodal and others. The obstruction that has been created by Phodal and others has been ordered to be removed so that Khema can go to his field unobstructed as he had been doing all these years.

( 3 ) THE learned Addl. Sessions Judge, however, did not agree that the Sub-Divisional Magistrate could pass a positive order directing the removal of the obstruction. According to the learned Addl. Sessions Judge, it was beyond the jurisdiction of the Magistrate. The Addl. Sessions Judge, Bhind, therefore, referred the matter to the High Court with the recommendation that the order of the a. D. M, being without jurisdiction be quashed and set aside.

( 4 ) THE matter then came before the Single Judge Raina J. who has not agreed with the Additional Sessions Judge nor with the views of this Court expressed in certain decisions, as we will presently see, of the Single Judge of this Court and has referred the two questions as stated above.

( 5 ) THE short question is whether the Magistrate can issue an order removing an obstruction. Section 147 (2) may be quoted for the sake of ready reference: "147 (2 ). If it appears to such Magistrate that such right exists, he may make an order prohibiting any interference with the exercise of such right: equivalent Citation: provided that no such order shall be made where the right is exercisable at all times of the year, unless such right has been exercised within three months next before the institution of the inquiry, or where the right is exercisable only at particular seasons or on particular occasions, unless the right has been exercised during the last of such seasons or on the last of such occasions before such institution. "

The two views to which we will presently refer are regarding the interpretation of sub-section (2 ). One view is that a Magistrate acting under the powers conferred under Section 147 Cr. P. C. has no power to issue a mandatory injunction directing the removal of an existing obstruction, whereas the other view is that he can do so. The former view has been expressed by the Calcutta. Bombay and Nagpur high Courts: the latter view is of the High Courts of Allahabad, Madras, Patna, assam, Lahore and Mysore in cases we will presently refer. Hemeon J. in ILR (1949) Nag 388 followed the decision in Syed Usman All v. Crown, AIR 1938 Nag 297. Hemeon J. did not give any reason, except that he had followed the view in the earlier case decided by Gruer J. In that case also we do not find much discussion as to why the