Sharma, J. - (1.) THIS is a reference by the learned Additional Sessions Judge, Ganga-pur, in case under sec. 147, Criminal Procedure, Code.
(2.) SMT. Krishna Bai (hereinafter to be referred to as the applicant) found an Ashram known as Shri Mumukshu Mahila Ashram (hereinafter to be referred to as the Ashram) in the neighbourhood of the temple of Shri Mahavirji, which is a very old and famous Jain temple in the village Naurangabad in the district of Sawai Madhopur. This was found some time before April, 1955. It is a common ground that this temple of Mahavirji attracts quite a large number of devotees, both Jains and non-Jains during the Mahavir Jayanti, which is celebrated between Chaite Sudi 11 and Baisakh Badi 1 every year. Different religious ceremonies are performed during this period culminating in a Rath (chariot) procession of Mahavirji on Baisakh Badi 1, the last day of the Jayanti. In the year 1955 the applicant installed an idol in the Ashram precincts and gave the temple the name of Mahavirji temple. It appears that certain person were appointed trustees of the institution founded by the applicant and one of them is Shri Sunderlal Raniwala describing himself as the Secretary of Shri Digamber Jain Bim Prathistha Mahotsava Shri Mahavirji addressed a letter dated 7th of April, 1955 to the Secretary of the old Mahavirji's temple and requested for certain articles belonging to the old temple on the occasion of the installation of the idol in the new temple constructed by the applicant. Then followed another letter dated 9th of April, 1955 from the same Shri Sunderlal Raniwala, describing himself as the Secretary of the Digamber Jain Prathistha Mahotsawa of Mumukshu Mahila Ashram, and by this letter the Secretary of the old Mahavirji's temple was requested to give permission for the taking out a chariot procession of the new idol on the occasion of installation between the 22nd April to 29th April, 1955. According to the affidavit of Shri Sohanlal, one of the members of the executive committee of the old temple, this permission was given and the chariot procession was taken out. In the year 1956 the applicant wanted to take out the Rath procession of the new idol during the Mahavir jayanti. A dispute arose between the party of the applicant and the authorities of the old temple and by a prohibitory order, the District Magistrate of Sawai Madhopur restrained the applicant from taking out Rath procession from the new temple during the Jayanti period. The procession, was therefore, not taken out that year. Again in the year 1957, the applicant wanted to take out Rath procession from her temple and she requested the District authorities to accord her permission for the same. The authorities of the old Mahavirji's temple objected to any Rath procession being taken out from the applicant's temple during the Jayanti days and the District Magistrate of Sawai Madhopur initiated proceedings under sec. 147 Criminal Procedure Code. A preliminary order dated 7th of March, 1957 was issued and both the parties were ordered to file their written statements and produce evidence in support of their respective claims. The applicant as well as the authorities of the old Mahavirji's temple (hereinafter to be referred to as the opponents) filed their written statements and affidavits. They also filed certain documentary evidence. In her written statement the applicant said that the road on which she wanted to take out the procession was a public road, that she had a perfect right to take out the procession peacefully and that there was no danger of any breach of peace from her side. In their written statements the opponents said that the land over which the applicant wanted to take out procession from her new temple was in the Thikana of old Mahavirji's temple and was the property of the thikana and that the road had been constructed by the thikana of Mahavirji for the facility of the pilgrims visting the temple and for the facility of the temple itself. It was stated that the applicant had no right to take out a procession over the said land without the consent of the thikana. They said that if procession were taken out by the applicant, there was danger of breach of peace. The learned District Magistrate by his judgment dated 9th April, 1957, held that the applicant had no right to take out procession from her temple without the consent of thikana and that the land over which the Rath procession was being sought to be taken out was that of the thikana. He consequently ordered the applicant and trustees and Manager of her Ashram not to take out procession of their Rath on the road starting within the land of Thikana Shri Mahavirji,' and after passing the old temple of Shri Mahavirji ending at the bank of the Gambhir river until she or any of the aforesaid persons obtained the decree or order of the competent court adjudging her or them to be entitled to use the said road for the purpose of taking out Rath procession during a specific time and period of the Jayanti. Against the judgment of the learned District Magistrate, the applicant filed an application for revision in the Court of the learned Additional Sessions Judge, Gangapur. Learned Additional Sessions Judge has given a finding that the road over which the procession was sought to be taken out by the applicant was a public road and that she has a right to take out her procession over the same. He has also held that there was no material on the record to show that there was any danger of breach of peace if the applicant took her Rath procession on the said road. On these findings he has made this reference and recommended that the order of the learned District Magistrate dated 9th of April, 1957, prohibiting the applicant from taking out Rath procession on the road in dispute from her Ashram to the Gambhir river, be set aside. On the receipt of the reference it was ordered that the appearance of the parties be awaited and the case be put up on 7th April, 1958. This order is dated 14th of March, 1958. Some time after an appearance was put in on behalf of the applicant and it was requested that the date of the hearing of the reference be fixed before 3rd of April, 1958. An appearance was put in on behalf of the opponents also and this case was put up for orders on the 3rd April, 1958. On behalf of the opponents a request was made that certain police papers be summoned. It met with the opposition on behalf of the applicant, whose learned counsel Shri T. R. Paliwal said that he did not contend that no police report had been made. After hearing both the parties the application for the summoning of the police papers by the opponents was filed and the reference was heard on merits. I have heard Shri J. P. Jain for the opponents. He opposes the reference. On behalf of the applicant Shri T. R. Paliwal supported it. It was argued by Shri Jain that the temple of the applicant was built some time in the year 1955. The idol in the temple of the applicant was installed in the month of April, 1955, after the Jayanti of that year. There was, therefore, no question of any Rath procession being taken out from the temple of the applicant on the road in question before the year, 1955, or during the Jayanti period of the year, 1955. Even after the Jayanti period on the occasion of installation, the Rath procession was taken from the temple of the applicant with the permission of the opponents and not as a matter of right. In the year, 1956 the applicant and other persons interested in her temple were prohibited from taking out the Rath procession during the Jayanti period of that year. Before the date of the preliminary order, which is dated 7th March, 1957, the applicant had never exercised any right of taking out the Rath procession on the road in question. It was argued that under the proviso to sub-sec. (2) of sec. 147, the applicant could not obtain any order prohibiting any interference with the taking out of her Rath procession. It was argued that it appeared to the Magistrate that the applicant had no right to take out a Rath procession from her te|mple during the Jayanti days and, therefore, by virtue of sub-sec. (3) the District Magistrate was perfectly entitled to make an order prohibiting the applicant from taking out Rath procession on the road in question during the Jayanti period. It was argued that on this ground alone the order of the learned District Magistrate deserves to be maintained. Further it was argued that the road over which the applicant wanted to take out her procession is in the Thikana of Shri Mahavirji and had been built from the funds of Shri Mahavirji. There is no material on the record to show that it is a public); road, which any member of the public is entitled to make free use of It was argued that the finding of the learned Additional Sessions Judge is erroneous in this respect. It was argued that the learned Additional Sessions Judge has erred also in holding that there was no material to show that there was danger of breach of peace. It was argued that from the explanation of the learned District Magistrate furnished to this Court it would appear that there was material before him to justify an inference that there was danger to the breach of peace. Further it was argued that learned counsel for applicant has himself conceded that it might be taken that there was danger to breach of peace and that there were police reports respecting such danger. It was argued that the order of the learned District Magistrate was perfectly proper from whatever angle it may be judged and that it was quite open to the applicant to go to a Civil Court to enforce her supposed rights. On behalf of the applicant it was argued by Shri Paliwal that the road over which the procession was desired to be taken out by the applicant was a public road and vested in the Panchayat concerned. It was argued that the applicant has filed certain receipts relating to the charges by the Panchayat for the use of the road in dispute. It was argued that by virtue of sec. 18 of the Rajasthan Panchayat Act, the road like the one in dispute is a public road. It was argued that such a public road every member of the public was entitled to make free use of subject only to public order. It was argued that there was no danger of breach of peace from the side of the applicant. She wanted to take out her procession peacefully and it were the opponents who were advancing threats, in case she took out the procession. It was argued that it would be very dangerous if a peaceful citizen is prohibited from making a peaceful use of a public high way simply because his opponents are bent upon taking the law into their own hands for the purpose of preventing their adversary from making legitimate use of such a high way. It was argued that the applicant had been given a fundamental right by the Constitution of India of making peaceful use of such a road and that the opponents were simply trying to prevent the applicant from exercising her fundamental rights with respect to the use of the road in question. Reliance was placed upon Art. 19 (1) (b) of the Constitution. Further it was argued that it was not a case in which sec. 147 should have been applied. It was submitted that sec. 147 applies only in case of right of easement and that in the present case there was no question of any right of easement. It was not contended that there was no danger of breach of peace if the applicant took out her Rath procession during the Jayanti days, but it was submitted that the danger was not from the side of the applicant but from the side of the opponents, and that it were the opponents who ought to have been prohibited from interfering with the Rath procession of the applicant and it was not just that the applicant should have been prohibited from taking out her Rath procession. I have considered the arguments of the learned counsel. In a way this reference has become infructuous because the order made by the learned District Magistrate related to the taking out of the Rath procession during the Jayanti days of 1957. The order of the learned District Magistrate was made on the 9th of April, 1957, whereas the last day of the Jayanti in the year 1957 was 15th of April, 1957. The applicant wanted to take out her Rath procession on the 14th of April, 1957, and it is for that that she applied for permission. That day has long passed and it is not physically possible for the applicant to take out Rath procession on the 14th of April, 1957. The decision of this reference, therefore, cannot be of any practical value so far as the application for permission of the applicant for taking out Rath procession on 14th of April, 1957 is concerned. However, as certain points have been raised in this case which might affect the taking out of the procession in future, I would like to give my own view in the case. It may be said at the outset that the criminal courts are not meant for enforcing civil rights. Their primary concern is to prevent breach of peace and other crimes. A criminal court is required to take action under sec. 145 or 147 only when it appears that there:is danger to the breach of peace on account of dispute of a certain nature with respect to immovable property between the parties. In this case it is not contested now that there was no danger of breach of peace. The learned District Magistrate was, therefore, perfectly entitled to take action under sec. 147 Criminal Procedure Code, if he found that there was a dispute regarding any alleged right of user of any land or water as explained in sec. 145, sub-sec. (2) (whether such right be claimed as an easement or otherwise ). The argument of the learned counsel for the appellant that sec. 147 applies only when a right is claimed as an easement, is not tenable in view of the clear language of sec. 147, according to which right might be claimed as an easement or otherwise. There is no doubt that a right was being claimed with respect to the user of the land in dispute. The applicant says that the road is public road and she has got the right to use it freely and peacefully. The opponents on the other hand say that she got no such rights and that the land is not a public road but belongs to the Thikana. To my mind a dispute like the present comes under S. 147 Criminal Procedure Code. I am supported in this view by a ruling of the Bombay High Court in the case of In Re Basappa Rachapa Balker (1) In that case the applicant wanted to take a car in procession along a road which according to him was a public road. This car was to be taken to a temple. The opposite party in that case were bent upon obstructing the procession. It was held that a right to take a car in a procession along the public road to a temple is a right of user of the land which falls within the scope of sub-sec. 1 of sec. 147. There can be no doubt that the opponents said that the road was a private road and the applicant had no right to take out her procession without their consent during a specific period and the applicant said that it was a public road on which she had a right to take out her procession. There was a dispute within the meaning of sec. 147 (1) of the Criminal Procedure Code. On finding that there was danger to breach of peace and both the parties could not be left at large to enforce their rights or supposed rights, learned District Magistrate was perfectly entitled to take action under sec. 147 (1 ). The question now is whether the applicant has been able to show that she had a right to take her Rath in procession along the road in question. It cannot be denied that the applicant had never taken out her Rath procession during the Jayanti period as a matter of right, before the preliminary order dated 7th March, 1957. Her temple itself was founded and the idol installed after the Jayanti period of 1955. After the Jayanti period of the said year she had to take permission of the opponents for taking out her Rath procession at the time of the installation ceremony. It cannot be said that even at the time of the installation, which fell after the Jayanti period of 1955, she took out her Rath as a matter of right. In the year 1956, she was prohibited from taking out her Rath by the order of the District Magistrate. So in that year too she could not take out her Rath procession. There might have been some doubt about the effect of the stoppage of her Rath procession in the year 1957, on the taking out of the procession in the year 1957 had she been able to prove that she had been taking out her Rath procession on the road in dispute upto the year 1955 during the Jayanti period as a matter of right. But in the present case there is no question of taking out Rath procession as a matter of right during Jayanti days upto the year 1955. So the applicant failed to prove any exercise of the rights of taking out the Rath procession before the disputed period. Shri Paliwal himself did not assert that the applicant had ever exercised any right of taking out her Rath procession before the year, 1956 He, however, argued that as the road in dispute was a public road she had a right to take her procession on that road any time she liked, even though she might not have exercised such a right in the past. I do not want to go into this question whether if the land in dispute were proved to be a public road such a contention would be maintainable or not, suffice it to say that on the material on the record of this case it cannot be said that the finding of the learned District Magistrate that the road was not proved to be a public road is so erroneous as to be interfered with in revision. The only material placed on the record is that one affidavit has been filed by the applicant herself and counter-affidavit has been filed on behalf of the opponents. The applicant says in her affidavit that the road in question is a public road, whereas the affidavit filed on behalf of the opponents shows that it is not a public road and that it has been constructed by and belonged to the Thikana of Mahavirji. There was oath against oath and the learned District Magistrate was perfectly justified in acting upon one affidavit or the other. Shri Paliwal argued that it has been proved by the applicant that charges for the use of this road were made by the Panchayat in whose jurisdiction this land fell. But there is nothing to show either in the receipts filed on behalf of the applicant or in other evidence produced by her that those receipts relate to the charges or tax for the use of the road in dispute. Shri Paliwal would like me to presume by virtue of sec. 88 of the Panchayat Act that the road in question is a public road and belongs to Panchayat. He relied upon clause (1) of sec. 88. This clause says that all public property situated within the jurisdiction of a Panchayat shall vest in and belong to the Panchayat and shall, with all other property which may become vested in a Panchayat, be under its direction, management and control. The prerequisite, therefore, of a property vesting and belonging to a Panchayat is that the property should be public property. There is no material except the affidavit of the applicant to show that the road in question is public property within the meaning of clause (1) of sec. 88 of the Panchayat Act, and this affidavit has not been believed by the learned District Magistrate. I have, therefore, no reason, looking to the material placed on the record of this case, to hold that the District Magistrate has made an error in law in holding that the road in dispute has not been proved to be public road. In view of this it is not necessary for me to go into the question whether Article 19 (1) (b) of the Constitution applies to the facts of this case. The applicant is perfectly free to go to a competent court and get an adjudication whether the road in dispute is a public road, over which she has a right to take out a procession during the Jayanti days. But this question can be decided only in a regular way by a competent court. So far as the criminal courts are concerned, they are not satisfied on the material on the record that the road in question is a public road over which the applicant has a right to take out a procession against the will of the opponents and that the assertion of her rights or supposed rights is likely to lead to a breach of peace. Learned District Magistrate, was, therefore, perfectly entitled to make the order which he has made and I have no reason to set it aside in revision.
(3.) THE reference is rejected and the order of the learned District Magistrate dated 9th April, 1957, is maintained subject to the result of any suit which might be brought by any of the parties concerned. .;