B.D. Gupta, J. - (1.) This revision arises out of an order dated 9 -2 -1970 passed by the learned SDM Deoband, Saharanpur, fixing a date for evidence u/S. 137 CrPC. After perusing the order recorded by the learned Magistrate and hearing learned counsel for the parties, I am of opinion that the order in question must be set aside. It appears that following an application made by one Siaram that the applicant, together with some other persons, had raised a wall which it was said, caused an obstruction to a public path, a report of the Station Officer concerned was called. The said report favored the allegations of Siaram with the result that a conditional order u/S. 133 CrPC was passed on 15 -9 -1969. The applicant and the others upon whom the said order was served appeared and filed their written statements whereby they denied the raising of any construction on any public passage. In regard to the place where the raising of the wall was alleged, the case set forward was that there never had been any public passage at the said place. In support of the aforesaid denial, two witnesses were examined. One of these was Telu Ram and the other was the applicant Musaddi Lal himself. Both of them, in the course of their statements, asserted that there never had been any public passage over the land in question as alleged by Siaram. An abadi map of the area concerned was also filed. The said map did not show the existence of any passage and reliance was placed on the said map as supporting the plea of the applicant and the other opposite parties that no public passage ever existed on the land in question. The order recorded by the learned Magistrate runs as follows: - - Being satisfied from the report of S.O. Deoband dated 19 -8 -1969 on the application of Sia Nand son of Mukhtiara resident of Majri P.S. Deoband dated 16 -5 -1969 that the OPs. Mussadi and others had caused obstruction to the persons using public way passing in between the houses of Mussadi and Bhondu in the North of Abadai of village Majri by constructing a wall, a conditional order u/S. 133 CrPC dated 15 -9 -69 was issued to the OPs. to remove the said obstruction within a week from the receipt of this order or to appear before me on 7 -10 -69 to show cause as to why this order should not be made absolute. Mussadi and others OPs appeared and filed their written statements dated 7 -10 -69 denying the existence of any public path and also denying any obstruction to the public path. Statements of the OPs were also recorded in which they denied the existence of any public path and stated that on the place in dispute they had their own old Gher. The OPs produced evidence in support of the denial u/S. 139A CrPC. On behalf of OPs Sri Telu Ram was examined as DW 1 and Sri Mussadi Lal examined himself as DW 2. The OPs also filed copy of C.H. 41, copy of Shajra Chakbandi, copy of Khatauni and Khasra 1377F., copy of application of Sia Nand dated 1 -7 -60, copy of site plan and copy of affidavit of Mussadi as documentary evidence. I have heard the arguments of the learned counsel for both the parties and have gone through the evidence on record. From the careful scrutiny of the evidence produced by the OPs u/S. 139A of the CrPC it is seen that the evidence produced by the OPs in support of their denial is not reliable evidence. Documents filed by the OPs relate to plot Nos. 231 and 232 which are recorded as Abadi. There is nothing on the record to show that the Rasta passes through these plots. Hence the documents filed by the OPs. do not appear to be relevant to this case. The police report as well as the Tahsil report on file show that the OPs have caused obstruction to the public path. Thereafter followed the operative portion of the order whereby the learned Magistrate fixed a date for evidence u/S. 137 CrPC.
(2.) It is true that the expression "reliable evidence" in cl. (2) of S. 139A of the CrPC does not mean merely evidence which prima facie is sufficient to support the denial but means evidence which may reasonably be considered as reliable. It is also true that the question as to whether such evidence is reliable or not is primarily a matter resting in the scrutiny and satisfaction of the Magistrate concerned, the test of the reliability being both subjective as well as objective. At the same time a mere 'Ipse dixit' of the learned Magistrate describing the evidence of witnesses as unreliable, without giving any reasons in support of that view is far from satisfactory. The relevant part of the learned Magistrate's order, quoted above, records no reason whatsoever why, in the opinion of the learned Magistrate, the evidence given by Teluram and Mussaddi Lal was unreliable. In regard to the documents filed by Mussaddi Lal and other opposite parties which unquestionably related to the area of the land in dispute, the learned Magistrate observed: - - There is nothing on record to show that the Rasta passes through these plots. This exactly was the case set -forward on behalf of the opposite parties and it is difficult to reconcile the reasoning of the learned Magistrate that because the said records did not show any Rasta passing through those plots, "the documents filed by the parties do not appear to be relevant in this case."
(3.) The only other material, apart from the evidence of the opposite parties mentioned by the learned Magistrate, consisted of the police report and tahsil report which was in favour of the allegations made by Sia Nand. These reports were hardly evidence and, in any case, had little bearing on the question of reliability of the evidence led on behalf of the applicant and the other opposite parties.;