MOHAMEDALI ABUBACKER Vs. KUNJU MOIDEEN

JUDGEMENT

(1.) This petition under Section 482 Cr.P.C is filed by the petitioner, who is the respondent in a proceedings initiated by the Sub Divisional Magistrate under Section 133 Cr.P.C. There was an allegation that free flow of water through a public channel (thodu) through private property is obstructed by the petitioner. The petitioner did not raise any specific dispute about the existence of the thodu or the flow of water through the thodu but he contended that there was no obstruction to the flow of water through the thodu.

(2.) The Sub Divisional Magistrate did not evidently conduct any enquiry under Section 137 of the Cr.P.C. Obviously, such enquiry was not necessary as there was no dispute about the nature of public right over the thodu. The question was only whether there was objectionable obstruction to the flow of water through the thodu. The Sub Divisional Magistrate found that there was no obstruction. In revision, the learned Sessions Judge confirmed that there was objectionable obstruction to the flow of water. It is accordingly that the Sub Divisional Magistrate passed the impugned order and the Sessions Judge confirmed the order.

(3.) The petitioner has come before this court with this petition under Section 482 Cr.P.C. Obviously, a second revision is not permissible in the light of the mandate of Section 397(3) Cr.P.C and hence the petitioner has entered through the door of Section 482 Cr.P.C. I find absolutely nothing vitiating the crucial finding that there is objectionable obstruction to the flow of water. Though, initially this court felt that not passing an order under Section 137 of the Cr.P.C would vitiate the final order passed, on perusing the nature of contentions raised in the objection statement dated 21/07/1998 by the petitioners herein, it is evident that the Sub Divisional Magistrate had no obligation to conduct any enquiry or pass an order under Section 137 Cr.P.C, no objection having been raised against the existence of public right over the thodu in question.