Full Judgment
Ryves and Piggott JJ.
1. This is an application in revision to set aside an order purporting to have been passed under Section 137 of the Code of Criminal Procedure. The facts appear to be as follows: The applicant Jagarnath Sahu owns a field No. 35 in the village of Jaraso. This field is on the extreme northern border of that village. It marches with field No. 52 and a portion of field No. 53 of village Deokali It appears that the level of field No. 35 is below that of the surrounding fields, and the result was that the surplus water had flowed in the past over this field into a tank to the south of the field in the village of Jaraso. It is said that Jagarnath Sahu has erected a band on the north of this tank and has also raised the level of the field No. 35 to such an extent that the flood-water, instead of flowing into the tank as it used to do, is now held hack and thus causes injury to the field No. 53 of Deokali in particular and also to some of the neighbouring fields. An application, purporting to be made under Section 133, was filed before the Magistrate by the owner of the field No. 53 in Deokali, whereupon the Magistrate issued notice to the other side. Jagarnath Sahu showed cause against that order, stating that the field was not a channel to which Section 133 could possibly apply. The learned Magistrate took evidence in the case on both sides and ultimately passed the order complained of It has been argued on behalf of the applicant that the learned Magistrate had no jurisdiction, on the facts of the case, to pass this order. Under Section 133, he could only take action if he was satisfied that an unlawful obstruction required removal from a channel which is, or may be, lawfully used by the public. It seems to us that even if field No. 35 could be described as a channel, it is cot such a channel as had been or could lawfully be used by the public. If injury has been caused by any tortious act done by Jagarnath Sahu, then the persons who have been damnified may have their remedy by civil suits. Reliance has been placed on the case of Emperor v. Bharosa Pathak (1) (1912) I. L. R. 34 All 345. and on Zaffer Nawah v. Emperor (2). (1904) I. L. R. 32 Calc. 930. The former decision must be taken in conjunction with the particular facts of that case. It is not an authority applicable to the present facts. The Calcutta case is clearly distinguishable. There the public had acquired a right to ford a river at a particular place, and obstruction to this public right was obviously within the purview of Section 133 of the Code of Criminal Procedure. A case more in point id that of Jhunnu Singh v. Mata Autar (3). Weekly Notes 1905 p. 190. See also In re Maharana Shri Jaswatsangji Fatesangji (4). (1837) I. L. R., 22 Bom., 988. In our opinion (he learned Magistrate had no jurisdiction to pass the order. We therefore set it aside.