JUDGMENT : R.N. Misra, J. - This is a reference made u/s 438, Code of Criminal Procedure by the learned Additional District Magistrate (Executive), Dhenkanal, recommending the quashing of a final order Section 147, Code of Criminal Procedure. 2. There was a dispute in relation to drawing of water from a tank for the purposes of irrigation of lands. The members of the first party who had actually come to Court contended that there had been a dispute in the matter of drawing water from the tank in 1942 and with a view to avoiding future dispute an agreement had been reached on 17-8-1942. It was contended that in terms of the said agreement the members of the second party could not obstruct the flow of water through the channel to the lands of the first party. The cause of action for approaching the Court was that the members of the second party had violated the terms of the agreement and had in fact refused to permit the members of the first party to draw water from the tank for irrigating their lands. 3. That application was forwasded to the local police and the local police after enquiry recommended action u/s 147, Code of Criminal Procedure. The learned Magistrate, on 6.9-1968, drew up the preliminary order and indicated therein that the subject matter of dispute was the right to use water from the Government Tank through the channel of the second party. The members of the second party challenged the right and gave a lot of details about the overt acts of the first party. 4. The learned Magistrate, after dissuasion the contentions raised by the parties in their written statements, stated, The second party bad admitted that he has dosed the Mahara at the end of his land on the south east corner of the tank and levelled the Mahara with his own land and has out the 'Nala' on the southern ridge of the tank as he has no other way out to irrigate his land. But his action is a signal (sequel) to first party's stopping the Danda water from the village into the lands of the second party. But his action is a signal (sequel) to first party's stopping the Danda water from the village into the lands of the second party. On the aforesaid finding he gave the following directions: (1) That both parties should sorupulously observe the terms of the 'Chuktipatra' which both parties have filed and admitted; (2) The first party shall not disallow Danda water from the village to flow into the lands of second party through the lands of first party; (3) The second party shall repair the Mahara at once and shall not put any obstruction to the flow of tank water through the 'Nala' on the south-east corner of the tank and through the Mahara into the land of first party. (4) The second party shall close another 'Nala' which he has out on the southern ridge of the tank forthwith. Objection has been raised to these directions of the learned Magistrate on the footing that they are mandatory directions beyond the jurisdiction of the learned Magistrate exercising powers in a proceeding u/s 147, Code of Criminal Procedure. The learned Additional District Magistrate having agreed with these contentions of the members of the second party has made this reference. 5. At the hearing Mrs. Padhi appearing for the second party members contended that it is an accepted principle that the doctrine of implied powers is not applicable to a criminal Court in seisin of a proceeding u/s 147, Code of Criminal Procedure. She fairly placed the views of the different Courts some supporting her contention and other taking a slightly different view. The representative decision taking the contrary view is in Abdul Wahab Khan Vs. Mohd. Hamid Ullah. It has proceeded on the hasis of the ancillary power theory and while accepting on principle that the magisterial power is in relation to prohibitory orders are not positive direction has indicated that such directions which are necessary to give effect to the prohibitory orders can be passed. 6. The decisions which support the contention of Mrs. Padhi are to be found in Chaturgun Turha and Others Vs. Jamadar Mian, ; Ram Ishwar Singh Vs. Rambachan Singh, ; Kirti Bhusan Namua and Another Vs. Lakshman Day, ; State Vs. Masasingh Chandasingh. 6. The decisions which support the contention of Mrs. Padhi are to be found in Chaturgun Turha and Others Vs. Jamadar Mian, ; Ram Ishwar Singh Vs. Rambachan Singh, ; Kirti Bhusan Namua and Another Vs. Lakshman Day, ; State Vs. Masasingh Chandasingh. The rule that can be drawn from the aforesaid decisions is that only a prohibitory order is contemplated and the provisions of Section 147, Code of Criminal Procedure do not clothe the magistrate with powers to direct removal of any obstruction. The doctrine of implied power has been held to be inapplicable. To me it appears that the view taken by the majority of the High Court is correct and the Magistrate u/s 147, Code of Criminal Procedure cannot give directions of a positive character as the civil Court does while giving mandatory injunction. There may be cases where some directions may really be necessary to effectuate the prohibitory order as was indicated in the aforesaid Allahabad case. But the case in hand is not one which can even be covered by the rule of the Allahabad decision. The directions which have been given by the learned Magistrate are certainly in excess of his authority and in exercise of powers u/s 147, Code of Criminal Procedure it was not open to the learned Magistrate to give those directions. Accordingly they are liable to be quashed. Mrs. Pad hi draws my attention to another feature in the case. Section 147, Sub-section (2), Code of Criminal Procedure provided as follows: If it appears to such Magistrate that such right exists, be may make an order prohibiting any interference with the exercise of such right. 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. The learned Magistrate has now here in his order found exercise of that right by the members of the first party within three months before the date of the preliminary order. In fact he has completely lost sight of the requirement of the statutory provision. Since the matter has been reported to this Court and the learned Counsel raises the point, I think it proper to take note of that infirmity in the order of the learned Magistrate. 7. In fact he has completely lost sight of the requirement of the statutory provision. Since the matter has been reported to this Court and the learned Counsel raises the point, I think it proper to take note of that infirmity in the order of the learned Magistrate. 7. On the aforesaid view of the matter the final order u/s 147, Code of Criminal Procedure has to be vacated. While quashing the said order I remand the matter to the learned Magistrate for a fresh disposal in accordance with law. This reference is accepted.