PATEL CHANNE GOWDA Vs. KRISHNA GOWDA

JUDGEMENT

(1.) In this petition, the petitioners have challenged the order dated 2-1- 1971 passed by the Sub--Divisional Magistrate, Chikkamagalur Sub-Division, Chikkamagalur, under S 133 of the Code of Criminal Procedure in SI. Cr. Mis.21/1970-71 directing the wells to be thrown open for the public of Koduvalli village and ordering the petitioners to throw open the wells and to allow water through the pipes as usual for the use of the public.

(2.) The few facts that have given rise to this petition are as follows: Petitioners were respondents I to 3 in the lower "Court. It appears that by 13-10-1970 the regularly appointed Assistant Commissioner and Sub-Divisional Magistrate, Chikkamagalur Sub-Division was not on duty and as such, the Tahsildar was acting as incharge-Assistant commissioner, Chikkamagalur Sub-Division. He received information in regard to the facts in this cr.se and then he examined two witnesses and found that action under S.133 Crl.P.C. was warranted and as such, he issued a preliminary order under the said section. The parties appeared in response to that and in the meanwhile, the regularly appointed Assistant Commissioner and Sub-Divisional Magistrate assumed charge of the office. He enquired into the matter. Thereafter, the regularly appointed Sub-Divisional Magistrate proceeded to pass the final order which is now challenged in this petition.

(3.) The learned Counsel appearing on behalf of the petitioners contended that the preliminary order passed by the Tahsildar who was in-charge Sub-Divisional Magistrate on 13-10-1970 is not warranted in law and is without jurisdiction inasmuch as, the said officer was not at all the Sub-Divisional Magistrate, and hence had no powers to institute proceedings under S.133 of the Crl.P.C. He placed reliance on a decision of this Court in Kodandaramappa v. State of Mysore, Cr.R.P. 493/69 dt. 18-6-1970. In that decision, proceedings under S.107 of the Crl.P.C. had been instituted bv an in-charge Sub-Divisional Masristrate. The in-charffe Sub-Divisional Magistrate was the Taluka Magistrate or a Tahsildar. It was argued that such in-charge Sub-Divisional Magistrate did not have the powers to institute proceedings under S.107 Crl.P.C. This Court held that a Tahsildar placed in additional chargp of the duties of the Assistant Commissioner will not attract the benefit of the notification of 16th September 1965 bv virtue of which all Assistant Commissioners incharge of Revenue Sub-Division are appointed as Sub-Divisional Magistrates. As such the Tabsildar in-charge of the duties of the Assistant Commissioner would not be an Assistant Commissioner in charge of the Revenue Sub-Division. It is clear from the above that the contention out forward by the learned Counsel for the petitioners is entitled to succeed.