K G NARAYANANKUTTY Vs. T E SEKHARA MENON

JUDGEMENT

(1.) Heard counsel on both sides.

(2.) In this revision arising out of proceedings initiated under S.133 of the Code of Criminal Procedure, there is no dispute that the tank in question is a public tank. It is already concluded by the decision of the Madras High Court reported in Chathunni v. Appukuttan ( AIR 1945 Mad. 232 ). When the right of the public is thus already concluded by a decision of a competent court, there is no justification or necessity to invoke the powers under S.137(2) of the Code for a fresh decision by a civil court. S.137(2) can apply only to those cases where there is no concluded decision by a competent civil court regarding the existence of a public right and reliable evidence in support of such denial is produced before the Magistrate. A decision of a civil court already rendered declaring or denying the right of public in respect of land, forecloses the remedy under S.137(2) of the Code. The complexities of a civil dispute need not be imported into an enquiry under S.133 and this is sought to be achieved by clause (2) of S.137.

(3.) In this view, the Sessions Court was right in setting aside the order of the Magistrate under which the proceedings under S.133 were stopped in spite of the earlier decision of the Madras High Court declaring that the tank is a public tank.