THANESWAR BORA Vs. KUMUD SARMAH

JUDGEMENT

(1.) The questions that fall for determination in this revision stemming from a proceeding under S.133 of the Criminal Procedure Code, ('the Code' for short) are whether the proceeding was invalid for breach of the provisions contained in Ss.137 and 141 of 'the Code'? If so, whether the impugned order dated 10-9-1984 passed by the Sub-divisional Magistrate (Executive), North Lakhimpur in Misc. Case No. 333/84 under S.138 of 'the Code' is invalid, illegal and liable to be set aside? If appropriate procedure has not been followed should the entire proceeding be quashed or it should be allowed to continue from the stage where the learned Magistrate committed the error of law)?

(2.) This is a proceeding under S.133 of 'the Code'. The applicants (opposite party) herein were interested to see that the general public get adequate water supply from the rivulet named "Gogola Mornoi". It appears that the rivulet is the fountain head of water supply to many villages including the applicants' village. The stream being the lifeblood, the opposite party could not tolerate when the petitioners Shri Thaneswar Bora and others put obstructions impeding free flow of water, on the plea that they had started a fishery by taking loan from the Government and the obstruction put by them was to divert the water course to catch fish.

(3.) Mr. Phukan, learned counsel for the opposite party is justified in submitting that on the side of the petitioners it was an assertion of 'private right' to fish for their personal gain whereas the villagers (opposite party) were fighting for 'life and health' of the villagers. On receipt of the complaint under S.133, a competent Magistrate passed a conditional order requiring the petitioners to remove the blockade set up by them. It also appears that one of the second party removed the obstruction. At least one amongst the party realised that his action was against "public interest". He is Gaya Ram Gogoi. Accordingly his name was struck off from the list of second party.