Chhangani, J.—This is a reference by the Sessions Judge, Merta, recommending that the order of the Sub-Divisional Magistrate, Parbatsar, dated 26 6-58 purporting to have been passed under sec. 137 Cr.P.C. should be set aside. 2. The relevant facts are these :— On 12.8.55, Surajmal and others residing in Khandelwala Mohalla in the town of Makrana, presented an application to Station House Officer, Parbatsar, stating that the rain water discharged from the houses of various persons flowing into their Mohalla had been passing through the way to the house of barbers Dashrath, Bagsiram, Bhanwarlal and Ramkishen from times immemorial and further complaining that the above mentioned barbers had caused an unlawful obstruction to the flow of water. The barbers had, it was mentioned, kept a small mori (drain) but it was wholly insufficient to discharge the rain water. They proceeded to say that the collection of rain water is a serious danger to their houses and wilt result in insanitary conditions leading to the spread of the disease of malaria. . The Station House Officer inspected the spot and made the necessary inquiries and after being satisfied of the truth of the complaint, applied to the Sub-Divisional Magistrate, Parbatsar on 17.8.55 for taking proceedings under sec. 33 Cr.P.C. A specific request was made that immediate arrangements should be made for the discharge of the water alleged to have been collected. The Sub-Divisional Magistrate on 18.8.55 passed a conditional order requiring Dashrat and other non-petitioners to remove the obstruction against the flow of the rain water or to show cause against the order. Only Baksiram appeared and submitted a reply on behalf of all. He denied having caused any obstruction against the flow of rain water. His case was that the rain water in the locality had been flowing in various directions and that other persons had obstructed the flow of the rain water in other directions. As a result there has been a greater diversion of the flow of rain water towards their houses. They had ofcourse kept a drain or a mori for the flow of rain water but on account of the extraordinary quantity of water flowing in that direction the water could not be carried through that drain and collected near their houses. As a result there has been a greater diversion of the flow of rain water towards their houses. They had ofcourse kept a drain or a mori for the flow of rain water but on account of the extraordinary quantity of water flowing in that direction the water could not be carried through that drain and collected near their houses. He however, admitted that if it is desired that the entire water should pass through their houses a pakka drain be constructed at the cost of the mohalla. 3. The learned Magistrate did not question the non-applicants as requited by sec. 139-A Cr.P.C., regarding the existence of a public right and straight away held the enquiry and ultimately passed an order under sec. 137 Cr.P.C. on 26th June, 1958. He directed that a pakka drain should be constructed for the flow of the rain water and that the Municipality should be asked to make necessary arrangement for this purpose. 4. Aggrieved by this order Dashrat and others filed a revision in the court of the Sessions Judge, Merta. The Sessions Judge held that the proceeding under sec. 133 Cr.P.C. in respect of obstruction to the flow of rain water were misconceived and incompetent. Examining the case on the allegations that there was an unlawful obstruction over a channel he observed as follows— "In this particular case, the flow of water consists only of rain water discharged from the various houses in the locality and the word channel could not be made to cover the case of such a flow of water." 5. He further doubted the propriety of proceedings under sec. 133 in respect of flow of rain water through the properties of other persons and pointed that even if the flow of water is treated a channel it cannot be such as is or may be lawfully used by the public. He also pointed out the irregularity committed by the magistrate in omitting to question the non-petitioner, under sec. 139(a). In the result he has reported the case to this court for quashing all proceedings under sec. 133. 6. Mr. Chandmal Lodha has appeared in support of the reference while Mr. Har-path Calla has opposed the reference. 7. A reference to sec. 139(a). In the result he has reported the case to this court for quashing all proceedings under sec. 133. 6. Mr. Chandmal Lodha has appeared in support of the reference while Mr. Har-path Calla has opposed the reference. 7. A reference to sec. 133(i) shows that it contemplates removal of unlawful obstructions or nuisance from any way, river or channel which is or may be lawfully used by the public or from public place. Obviously the present case is not a case of way or river and the only controversy raised in the present case is whether the flow of rain water can be treated a channel within the meaning of sec. 133(a). 8. The word channel has been used in association with way and river which are or may lawfully be used by the public. In the background of a proper consideration of the language, I am inclined to think that the word channel is intended to cover such a flow of water as can be used for positive uses such as navigation or irrigation. It is not * intended to cover flow of rain water across roads streets or lanes in cities or towns. Such flows are incapable of any positive use by the public. A prevention of loss to the property of persons by avoiding collection of water and an insistence on a free flow of water and removal of obstruction cannot imply a use of channel in terms of sec. 133(1). 9. I accordingly hold that a flow of rain water in cities and towns is not a channel which is or may lawfully be used by the public. 10. Another difficulty in applying sec. 133 to the present case is that the rain water is required to pass through the houses of the non-petitioners. Assuming that a flow of rain water can be treated as channel, still it cannot be reasonably stated that a flow of such water through somebodys house is a channel which is or may be lawfully used by the public. The public cannot make any direct or positive use of the flow of water through some bodys house and as stated earlier the claim to avoid danger to person and property of others on account of collection due to an obstruction is not a use of the flow of water as a channel by the public. 11. The public cannot make any direct or positive use of the flow of water through some bodys house and as stated earlier the claim to avoid danger to person and property of others on account of collection due to an obstruction is not a use of the flow of water as a channel by the public. 11. A similar question arose in Jagar Nath vs. Rameshwar (1). In that case the owner of a low level field, across which the surplus water of the neighbouring fields used to flow into the tank,-raised, the level of his field to such an extent that the flood water, instead of flowing into the tank, as it used to do, was held back and thus caused injury to the neighbouring fields. The Magistrate took proceedings under Sec. 133 Cr.P.C. and passed an order under sec. 137 Cr.P.C. While setting aside the order of the Magistrate and quashing the proceedings, the learned Judges made the following observations : "It seems to us that even if field No. 35 could be described as a channel, it is not such a channel as had been or could lawfully be used by the public. If injury had been caused by any tortious Act done by Jagarnath Sahu, then the persons who have been damnified may have their remedy by civil suits." 12. The present Case is covered by the rub laid down in that case. The non-petitioners while using their properties having caused unlawful obstruction to the flow of water can only be said to have acted in tortious manner. They cannot be said to have interfered with a channel which is or may be lawfully used by the public. The persons aggrieved can have remedy in a civil suit. It is not possible to contend that there was a channel through their houses and that the Mohalledarans were entitled to use that channel and that they have been deprived of the use of that channel. 13. In my opinion on the allegations made in the petition there is no justification for proceedings under Sec. 133. 14. Casually it may also be mentioned that the nature of the order passed by the Magistrate is also not warranted by the language of sec. 133 and other subsequent sections. Proceeding under this chapter contemplate a conditional order to be followed by an absolute order. 14. Casually it may also be mentioned that the nature of the order passed by the Magistrate is also not warranted by the language of sec. 133 and other subsequent sections. Proceeding under this chapter contemplate a conditional order to be followed by an absolute order. It does not contemplate any direction for arrangements to be made by the Municipality. The order, is defective when looked at from this angle also. However, I need not discuss the effect of this defect as I am holding on other grounds that the proceedings are mis-conceived and without jurisdiction and could not be sustained. 15. I, therefore, accept the reference, set aside the order of the learned Magistrate dated 26th June, 1958 and quash all proceedings under sec. 133 Cr.P.C.