Order: The petitioner gave a complaint at the Police Station at Paravoor on 17th October, 1961, complaining that the respondents obstructed a pathway on 15th October, 1961. The Sub-Inspector visited the place and prepared a mahazar; but, since no action was taken, the petitioner and others filed another petition before the Executive First Class Magistrate, Quilon, on 12th January, 1962, for taking action under section 147 of the Code of Criminal Procedure. The petition was sent to the police at Paravoor for enquiry and report; but, no further action was taken on this petition either. Consequently, the petitioners moved the Superintendent of Police, Quilon, on 4th May, 1962, by another petition, which was again sent to the Police Station at Paravoor. The Sub-Inspector of Police then prepared a mahazar and sent a report to the Executive First Class Magistrate, whereupon proceedings under section 147 were started by the Magistrate. The Magistrate ultimately dismissed the petition holding that, since the petitioners did not establish that they exercised a right of passage within three months prior to the institution of the enquiry, they were not entitled to any order in their favour. The petitioners then filed a petition before the Sessions Judge, Quilon for revising that order; and he has come to a contrary conclusion and has made the reference. The order of the Magistrate has obviously been passed under a mistake of the facts of the case. He has not seen the petition filed before Court on 12th January, 1962; and, in his opinion, the story of such a petition “is one concocted by the petitioners to cover up the delay in filing the complaint.” In fact, the petition was filed; and that is not seriously disputed before me. That petition was evidently within three months of the obstruction caused by the respondents. Nevertheless, it is urged by the respondents, on the strength of the decision of this Court in John v. Joseph1by Govinda Menon, J., that the relevant date for calculating the period of time is the date on which the Magistrate draws up the proceedings and not on the filing of the petition. The decision cited arose under section 145 of the Criminal Procedure Code. Under sub-section (4) of that section, the relevant question is as to who is in possession on the date of the preliminary order. The decision cited arose under section 145 of the Criminal Procedure Code. Under sub-section (4) of that section, the relevant question is as to who is in possession on the date of the preliminary order. The second proviso to the sub-section then provides that if it appears to the Magistrate that any party has within two months next before the date of such order been forcibly and wrongfully dispossessed, he may treat the party so disposses- 1. (1961) K.L.T. 515. -------------------------------------------------------------------------------- ---------------- (1965) 1 M.L.J. 394 at page 395 ---------------- -------------------------------------------------------------------------------- sed as if he had been in possession at such date. It is evident that under this section the stress is on the “date” of the preliminary order, and that date must therefore be the material date. The position under section 147 of the Code is different. The proviso to subsection (2) of the section enacts that no order as contemplated by the sub-section shall be made, unless the right claimed has been exercised “within three months next before the institution of the inquiry.” Three dates are possible, on which it can be stated that the inquiry is instituted. One is the date on which the aggrieved party files a complaint before the Police. The second is the date on which the party files an application before the Magistrate. Yet a third is the date on which the Magistrate draws up an order under section 147(1) after he is satisfied that a dispute likely to cause a breach of the peace exists. In the case before me, there is no need to express any opinion whether the first date is the material one, because the question here is whether the filing of the petition before the Magistrate will be institution of the inquiry, or whether it is only the drawing up of the preliminary order under section 147(1) that will constitute the institution. There are a few decisions similar to Ram Chandra Acharjee v. Aditya Chandra Pal1 which take the view that the drawing up of the inquiry alone is institution, and not the mere filing of the petition before the Magistrate. The reasoning is that the word “inquiry” in the proviso must have relation to the expression “shall thereafter inquire into the matter” appearing in sub-section (1) of the suction. The reasoning is that the word “inquiry” in the proviso must have relation to the expression “shall thereafter inquire into the matter” appearing in sub-section (1) of the suction. With due respect to the learned Judges, I find it difficult to agree with this reasoning; because, what the expression, that the magistrate “shall thereafter inquire into the matter in the manner hereinafter provided,” means is that the inquiry thereafter is to be conducted in accordance with the procedure indicated; and it does not, in my opinion, indicate that the inquiry commences only thereafter. Ifind support for this reasoning in decisions like Bhagawan Swain v. Mathuri Swain2; Trijogi Narayana Singh v. Kamta Prasad3and Gopal Chandra Matty v. Bhuban Chandra Das4. Therefore, the decision of Govinda Menon, J., and other decisions under section 145 of the Code will not apply to the wording of the Proviso to section 147(2) of the Criminal Procedure Code. In view of the fact that the petitioner in the case before me filed their petition before the Magistrate for taking action under section 147 within three months of the obstruction caused by the respondents the petition is within time. The reference is accepted, the order of the Executive First Class Magistrate is set aside and the petition is remanded to him to be proceeded with further in accordance with law. The records will be sent down forthwith. M.C.M. ----- Refererce accepted.