Case Note & Summary
The case arises from a petition under Section 133 of the Code of Criminal Procedure, 1973 filed by the first respondent (Balachanda M. Thammaiah) against the petitioners (Iynanda C. Chengappa and Iynanda C. Bopanna, the original first petitioner having died and the case abated as against him). The first respondent claimed that the petitioners were obstructing a free passage between survey numbers 63/1 and 60/1 of Yadoor village, Virajpet Taluk, Kodagu District. He alleged that he had immovable properties, grew coffee, and had a residential house in the village, and to reach his land bearing survey No.75/1 and other lands, he used a pathway called 'Kadanga' lying between survey numbers 63/1 and 60/1. The petitioners were using the same pathway and had obstructed it. The first respondent sought removal of the obstruction. The learned Magistrate passed an order under Section 133 Cr.P.C. directing the petitioners to remove the obstruction. The petitioners challenged this order before the Sessions Judge, Kodagu, Madikeri, in Criminal Revision Petition No.5/1999, which was dismissed on 27.12.2005. Aggrieved, the petitioners filed the present Criminal Revision Petition under Section 397 Cr.P.C. before the High Court of Karnataka. The High Court heard the learned counsel for the petitioners and the State Public Prosecutor, while the counsel for the first respondent remained absent despite several adjournments. The court noted the brief facts and observed that the proceedings under Section 133 Cr.P.C. are preventive in nature and do not require proof of a public right. The courts below had concurrently found that the pathway was a public road and that the petitioners had not established their exclusive ownership over the disputed land. The High Court held that there was no perversity in the findings and that the order directing removal of obstruction was justified. Consequently, the revision petition was dismissed.
Headnote
A) Criminal Procedure Code - Section 133 Cr.P.C. - Public Nuisance - Removal of Obstruction - The proceedings under Section 133 Cr.P.C. are summary in nature and intended to prevent public nuisance. The court need not conclusively determine the existence of a public right; it is sufficient if the pathway is used by the public. The petitioners failed to establish exclusive ownership over the disputed land. Held that the order directing removal of obstruction was proper. (Paras 4-6) B) Criminal Revision - Scope of Interference - Concurrent Findings of Fact - The High Court in revision under Section 397 Cr.P.C. will not interfere with concurrent findings of fact unless they are perverse or based on no evidence. The courts below had concurrently found that the pathway was a public road and the petitioners had not proved their exclusive right. Held that no interference was warranted. (Paras 5-6)
Issue of Consideration
Whether the order passed under Section 133 of the Code of Criminal Procedure, 1973 directing removal of obstruction to a pathway was justified and whether the High Court in revision should interfere with concurrent findings of fact.
Final Decision
The High Court dismissed the criminal revision petition, upholding the order under Section 133 Cr.P.C. directing removal of obstruction.
Law Points
- Section 133 Cr.P.C. is preventive in nature
- not requiring proof of public right
- concurrent findings of fact not interfered with in revision unless perverse
- burden on person claiming exclusive right to pathway to prove ownership
- public nuisance can be abated under Section 133 Cr.P.C. even if pathway is not a public road but used by public.
