SATISH CHANDRA SEN Vs. KRISHNA KUMAR DAS

JUDGEMENT

(1.) This rule is directed against an order of the Deputy Magistrate of Netrakona in the district of Mymensingh passed under Section 139-A, Criminal P.C., staying proceedings started under Section 133, Criminal P.C. It was issued upon two grounds.; first that the learned Magistrate was wrong in disposing of the case without examining the witnesses produced by the petitioner; secondly, that in view of the procedure followed by the Magistrate a final order under Section 137, Criminal P.C., ought to have been passed on 25 May 1929. So far as the question raised by the first ground is concerned, it is argued on behalf of the petitioner that, on the date on which the Magistrate passed the order under Section 139-A (2), the first party was present with his witnesses whom the Magistrate did not examine. What the Magistrate did was this: he found that the settlement record published not very long ago was in favour of the second party as it did not show the pathway or gorat claimed by the first party, while it showed many other gorats in the locality. Belying mainly on this evidence the learned Magistrate held that the second party was able to produce reliable evidence in support of his denial and he accordingly referred the parties to the civil Court and stayed the proceedings. The procedure followed by the Magistrate is perfectly right. What he is required to do under Section 139-A is to ask the party required to show cause as to whether he admitted the existence of any public right. On his denying the existence of such right he has to inquire, and if he is satisfied that there is any reliable evidence in support of such denial he will stay proceedings. The Record-of-Eights is a very valuable piece of evidence which raises the presumption of correctness of the entries therein; and if it happens to be in favour of the second party the Magistrate is perfectly justified in considering it as reliable evidence in support of the denial. This question was considered by this Court in the case of Debendra Nath Chowdhury V/s. Chairman of the Local Board of Asansol . There the learned Judges observed: In our opinion, once the settlement record was produced showing that this land was the petitioner s, whether that record is right or wrong, the criminal Court should have stayed the proceedings and left the parties to have their rights decided in a civil suit.

(2.) This decision is a complete answer to the argument raised on behalf of the petitioner. But looking at the section as it stands there does not seem to be any obligation on the part of the Magistrate to examine every witness produced. He is to enquire into the matter of the existence of a public right, and if it appears that there is reliable evidence in support of the denial by the second party he shall stay proceedings. He has no option in the matter, and he is not bound to wait till he has examined all the witnesses produced by the parties unless for the purpose of the inquiry. As pointed out in Thakur Sao V/s. Abdul Aziz A.I.R. 1923 Pat. 170 the words used in the section are "reliable evidence" and not "proved" It is not the duty of the Magistrate to satisfy himself that the second party has succeeded in proving that there was no public right of way. He has only to see that that party has succeeded in producing before him evidence which does not seem to be unreliable. The object with which Section 139-A is enacted is to prevent the Magistrate, in inquiring into matters under Ch. 10, arrogating to himself the functions of a civil Court and instituting an elaborate inquiry with regard to the rights of the parties. There is no substance in this ground.

(3.) As regards the second ground, an application was made to the Magistrate in January 1929. On that application the Magistrate asked the second party to show cause. They filed a written statement in which mention was made of the Record-of-Rights and other documents. The Magistrate thereupon asked the first party to file the settlement map and parcha regarding the gorat: No papers having been filed the Magistrate ordered the local police to inquire and report. On receipt of the police report the Magistrate again ordered the issue of notice under Section 133 on the second party. In pursuance of that order proceedings were drawn up and served on the members of the second party. It is contended that the Magistrate had no right to draw up two proceedings under Section 133. In the first place there is nothing in the law to prevent the Magistrate drawing up fresh proceedings based on proper materials. In the second place the Magistrate may have passed orders under Section 133 twice but regular proceedings were drawn up in the case in pursuance of the last order. Then again the order of the Magistrate staying proceedings may relate to any one or both the proceedings. There is no substance in the objection made under this head. The rule accordingly fails and is discharged.