HARNANDAN LAL Vs. RAMPALAK MAHATO

JUDGEMENT

(1.) This is an application in revision against an order of a First Class Magistrate staying under Section 139-A, Criminal P.C., a proceeding under Section 133 of the Code after taking evidence contemplated by the former Section. It appears that the petitioner filed before the Sub-divisional Magistrate of Patna a complaint alleging that the opposite party had obstructed a public water channel. The opposite party appeared before the Magistrate and one of them (opposite party 1) at any rate denied the obstruction and further contended that the right claimed by the petitioner was not a public right. The case was made over to the learned Magistrate whose order is in revision before us. He took some evidence. One witness was examined on behalf of the opposite party, and thereupon the learned Magistrate stayed the proceeding or in other words dropped it holding that the right claimed by the petitioner was not a public right. There was an unsuccessful application before the learned Sessions Judge and then the matter has come up before this Court in revision.

(2.) It is contended on behalf of the petitioner that the right involved was a public right and therefore the proceeding ought not to have been dropped. It is not disputed that the right claimed by the petitioner in the channel in dispute is a right to bring through it water from a certain reservoir for the irrigation of the fields of the cultivators including himself. According to the only evidence on the record, the village Poonawan, where the channel is situated, contains 200 houses of which 60 are cultivators and some of these 60 use the channel for bringing water from the reservoir for the irrigation of their lands. The question for consideration is whether this right of cultivators of using the channel for the purpose of irrigation can be said to be a public right within the meaning of Section 133, Criminal P.C., or in other words about 60 cultivators can be said to be public. As the learned Sessions Judge has pointed out, the word "public" is not defined in the Criminal Procedure Code; but for the purposes of the Code the definition given in the Indian Penal Code is to be adopted. Section 12, Indian Penal Code, says that "public" includes any class of the public or any community. This definition is inclusive and does not define the word "public." It only says that class of public or community is included within the term "public."

(3.) It must be conceded that the learned Magistrate has gone a bit too far when he says that "it (public) evidently means the class or community throughout the world." A class or community residing in a particular locality may come within the term "public." The question is whether the cultivators who use the channel form a class or community. That obviously is not necessary. The learned Sessions Judge has relied upon Munna Tiwari V/s. Chandarbali where Dalai J. held the right to be of a private nature and not a public right. In Emperor V/s. Bharosa Pathak (1912) 34 All. 345 where a certain act was likely to cause damages to the in habitants of two villages, Tudball J. held that the right of passage was a public right. The question has to be decided on the facts of the case. There may be a case where there cannot be any doubt that the right claimed is a public right. On the other hand, there may be a case in which there cannot be any doubt that the right claimed is a private one. There may however be a case in which it may be arguable whether the right claimed is or is not a public right. The number of persons claiming the right and the nature of right itself will no doubt be the criteria on which conclusions may be arrived. The best criterion will be to see whether the right is vested in such a large number of persons as to make them unascertainable and to make them a community or class. Judging from this point of view, I have no hesitation in holding that though, as I have said, the learned Magistrate has gone far he was perfectly right in holding that the right claimed was a private right vested only in a selected number of persons who claim to irrigate their fields from this channel, and his order, in my opinion, was perfectly correct.