L. S. MEHTA, J. - (1.) THE City Magistrate, Udaipur, initiated proceedings under S. 147 Cr. P. C. , on the police report, dated August 16, 1966. Party No. 1 Jaswant Singh, a resident of Jadion-ki-Ol, claimed a right of way to his house situate behind Naga Magri Mosque, Udaipur. through a plot of land, belonging to party No. 2, comprising Hamir Khan and Himmat Khan, residents of Lalghat, Udaipur. THE City Magistrate issued notices to both the parties and proceeded to inquire into the matter. THE house, to which the right of way was claimed, admittedly belongs to Mst. Sohan Bai, mother of Jaswant Singh. While the proceedings under S. 147 Cr. P. C. were afoot, Mst. Sohan Bai filed a civil suit in May, 1967, in the Court of the Munsif, Udaipur, for declaration and permanent 'injunction' in relation to the right of way in respect of which criminal proceedings were pending. In the civil suit the plaintiff prayed for an interim injunction, which was granted on May 3, 1967. That injunction still subsists. THE proceedings in the civil suit ace continuing and the evidence ofthe parties is being recorded. Hamir Khan and Himmat Khan submitted to the criminal court about the pendency of the civil suit between the parties regarding the right of way and prayed for dropping the proceeding under S. 147, Cr. P. C. THE criminar court paid no heed to it. It continued its inquiry and ultimately issued an order on November 29, 1968, directing party No. 2 to remove barbed wire fencing, which was impinging on the way to party No. l's residence. Hamir Khan and Himmat Khan filed a revision application against the above order in the Court of Sessions Judge, Udaipur. THE said Judge dismissed the revision petition in limine on December 11, 1968.
(2.) AGGRIEVED against the above order, party No. 2 has filed this revision petition. Contention of learned counsel for the petitioners is that the City Magistrate's court had had no jurisdiction to pass a positive order for the removal of the fencing. An order of the nature, counsel adds, is beyond the scope of the provisions of S. 147 (2), Cr. P. C. The only point to be adjudicated upon in this case is. whether the court of the City Magistrate, Udaipur, was competent to direct the removal of the obstruction on the way in dispute in accordance with the provisions of S. 147 (2), Cr. P. C. There is a conflict of opinion on this issue. A Full Bench of the Calcutta High Court in Hem Chandra vs. Abdul Rehman (J), consisting of 5 Judges, held that it is one thing to make an order prohibiting the doing for an act; it is another to order the doing of act. Sub-s. (2) of S. 147, Cr. P. C. , allows the former, but it does not permit the latter. There fore, a Magistrate, acting under the powers conferred by the Sub-sec. (2) of S. 147 Cr. P. C. has no jurisdiction to issue a mandatory injunction, directing the removal of an existing obstruction. Shantilal vs. Dahyabha (2) is another illustrative case. In that case it, was laid down that the primary object of the proceedings under S. 147, Cr. P. C. , is to prevent a breach of the peace and not to determine or enforce the rights of the parties. An order under this section remains in force for a temporary period and is subject to the decision of a civil court. The legislature might, therefore, Have taken the view, when the section was revised in 1923, that it was not necessary to invest Magistrates with powers to undo things which had already been done, that it was sufficient to provide for prevention of further interference with the enjoyment of a right and that if a party wanted more relief, such as a mandatory order to remove an existing obstruction, he should seek remedy in a civil court. In King Emperor vs. Adbullah (3 ). Hameon J. discussed' the implication of S. 147 (2), Cr. P. C. a Magistrate has no power to make an order in the nature of a mandatory injunction. All that the Magistrate can do is to make an order, prohibiting any interference with the right of way, if, in his opinion, it existed. A contrary view has however, been taken by a Full Bench of the Allahabad High Court in Abdul Wahab Khan Vs. Md. Hamid Ullah (4 ). There it was held that a power to effectuate a certain object which the legislation has in view must be construed as implying the existence of all such ancillary powers as are necessary for carrying out the intention of the legislature and effectuating the object in view. No doubt, under S. 147, Cr. P. C, the jurisdiction of a Magistrate is confined only to the passing of a prohibitory order which is generally in a negative form and has no power to issue every kind of positive order to secure the exercise of the right of user by a party. But in order to make prohibitory order effective the Magistrate has jurisdiction to pass an order for the removal of an obstruction, if without its removal the prohibitory order cannot be effectively enforced. Angappa vs. Krishnaswami (5) illustraties that a negative order can include a positive direction to make the prohibition effective and useful. If an order to be effective, even though it be of a, prohibitory nature whatever is incidental to the prohibition should also be available to the Magistrate. In Aagappa vs. Krishnaswami (5) the dispute was in regard to the right to take water from a channel which at the time of inquiry by the Magistrate had become obliterated and had ceased to be a channel functioning as such and A. D. B. of the Madras High Court agreed with the observation of Malik G. J. , in the Allahabad case cited supra (3) and observed. "any inference would in very fit cases include the removal of any obstruction that has already been placed in the exercise of the aggrieved party. It need not have reference merely to any interference that might occur in the future, and which might not possibly occur at all in view of the order issued by the Magistrate. It is, therefore, quite necessary and essential that the objects underlying the power given to the Magistrate under Chapter XII and the various sections coming within that chapter should be achieved when the Magistrate passes orders in the interests of peace. We are, therefore, in general agreement with Court the ruling in the Full Bench decision of the Allahabad High Court. " The Patna High Court has expressed the opinion that the Magistrate has jurisdiction to so frame its order as to compel the removal of the obstruction: vide Ram Dhan Puri vs. Barham Deo (6 ). In Ghumandas Singh vs. Emperor (7) the Lahore High Court held that sec. 147 (2) empowers a Magistrate in a proper case, to order a person to do something or, in other words, to direct a mandatory injunction. Raghunath vs. Yadav (8) illustrates that a Magistrate is authorised to pass a mandatory order under sec. 147, Cr. P. C, directing the removal of an obstruction on the ground that the power conferred on the Magistrate is an effective power and not a nominal one. The same proposition is laid down in Bhubaneshwari vs. Kaliram (9 ). In that case it has been held that the power to pass a prohibitory order under sec. 147, Cr. P. C, necessarily implies an effective order and in some cases it may be essential to direct removal of obstruction so as to enforce the order declaring the right of a party over the land. In Caries on Statute Law, 5th Edn, page 105 it is given that if a statute is passed for the purpose of enabling something to be done, but omits to mention in terms details which is of great importance (if not actually essential) to the proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out. There is also an instructive passage occurring in Seaford Court Estates vs. Asher (10 ). It runs as under: "whenever a statute comes up for consideration it must be remembered that it is not within human powers to force the manifold sets of facts which may arise and, even, if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the drafts-men of Acts of Parliament have often been unfairly criticised. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. " With greatest respect, I find myself unable to agree with the proposition that once by force or stealth one party has put the obstruction in the user of a piece of land, there remains no danger of a breach of the peace. Under sec. 147, Cr. P. C, a Magistrate has jurisdiction to issue orders even in the nature of mandatory injunctions. It is true that sec. 147, Cr. P. C. , is not intended to give to the Magistrate power to decide disputes relating to the rights of the parties, still the object is to prevent a breach of the peace. In case the Magistrate finds that if there is likelihood of a breach of the peace, and that is due to the prima facie doubt of the wrongful act of a person, he can direct that person to desist from doing the wrongful act. If it is necessary for the wrongdoer to remove the obstruction which he has put on the way of the enjoyment of the right of the other side, he can remove that. In passing such an order the Magistrate, however should bear in mind that his jurisdiction is confined only to preventing a breach of the peace and that his orders are intended to be of a temporary nature till the rights of the parties are finally adjudicated upon by a competent court. In this case, so far as I can see from the order of the first court, no substantial construction has been built, only some sort of a barbed wire has been put up to block the way. After carefully considering all respects of the matter and the facts and circumstances of this case, I am of the opinion that the Magistrate rightly passed an order directing the opposite party to remove the obstruction. Power to pass a prohibitory order implies power to pass an order as may be necessary to effectuate the prohibitory order by directing removal of the obstruction. It may also be mentioned here that the order issued by a Criminal court is not effected by a temporary order of a civil court. The purpose in a latter case is to maintain status quo. Such purpose is wholly foreign to the scope of the proceeding under sec. 147, Cr. P. C, which are concerned mainly with preventing a breach of the peace. In the result, I see no substance in this revision application, which is hereby dismissed. .;