- (1.) K. N. Ojha, J. Instant revision has been preferred against judgment and order dated 12-3-2001 passed by learned Vth Additional District and Sessions Judge, Basti in Criminal Revision No. 271 of 2000, Mohd. Khalil and others v. State of U. P. , whereby revision instituted by opposite parties Nos. 3 to 8 against order dated 2- 8-2000 passed by Sub- Divisional Magistrate, Mehdawal, District Sant Kabir Nagar in Criminal Case No. 21 of 1998, Mohd. Khalil v. Karam Hussain and others, has been allowed and the Sub Divisional Magistrate was directed to decide the case under Section 133 Cr. P. C. rather than to drop it proceedings on the ground that civil suit is pending in Civil Court.
(2.) HEARD Sri S. K. Rai, learned counsel for the revisionists and Sri Anoop Ghosh and Sri Shekhar Yadav, learned A. G. A. Revisionists 1 to 4 and opposite parties Nos. 3 to 8 both are resident of village Batsara, Police Station Bakhira, Tehsil Mehdawal, District Sant Kabir Nagar. The opposite parties 3 to 8 moved application against revisionists under Section 133 Cr. P. C. containing the fact that there is a public path in village Batsara. The opposite parties who are revisionists, namely, Karam Hussain, Ubaidur Rehman Shoharat Ali and Waliullah raised wall on public path and thereby obstructed the passage which has been in public use up till now. Therefore, prayer was made for removal of the wall which was constructed on the public path. When notices were issued, the revisionists appeared and filed objections before the Sub-Divisional Magistrate that they are owner and in possession of gata Nos. 53 and 105 and whatever construction was made, it is on their plot and the public path has not been encroached. It was also alleged that a suit was filed in Civil Court in respect of abadi land and it was directed that the parties will maintain status quo on the spot. The Sub- Divisional Magistrate held that since regular suit is pending in Civil Court, therefore, it was not proper to pass any order under Section 133 Cr. P. C. Aggrieved therefrom, instant revision has been preferred. The learned revisional Court held that the proceedings under Section 133 Cr. P. C. started prior to institution of regular suit in Civil Court. Application under Section 133 Cr. P. C. was moved on 10-6-1999 while regular suit was filed on 13-7-1999. Placing reliance on 1983 (20) ACC 196, Ram Narain Singh v. State of U. P. , it was held that since suit was filed later to the proceedings under Section 133 Cr. P. C. started, the proceedings under Section 133 Cr. P. C. will not come to an end and the case is to be decided. Therefore, the Sub-Divisional Magistrate was directed to take further action in the matter.
(3.) IT is submitted by the learned counsel for the revisionists that the proceedings were rightly dropped by the Magistrate and reliance has been placed on 1978 All LJ 1288, M/s. Ghulam Rasool Riaz Ahmad v. State. Reliance has also been placed on 1978 Crl. LJ 1052, Purnamasi Kar v. Purandar Kar, in which it was held that Magistrate is required to see whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved. If the evidence adduced by the party against whom the order is made is legal and reliable, there is an end of the matter and the Magistrate has to stay his hands and refer the parties to the Civil Court. "reliable Evidence" as envisaged under Section 139-A means evidence on which it is possible for the Court to place reliance. IT does not mean that the evidence is such that it definitely establishes title to the land. What is meant by the Section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion which is more reliable or should be preferred. The object of Section 139-A is that if the denial of the public pathway involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent Civil Court and not by a Magistrate in a summary inquiry provided under Section 139-A. Where the Magistrate records evidence and also allows the other party to cross-examine the witnesses and then arrives at his decision, his order will not be sustainable. The revisionist has also relied on 1980 Cri LJ 1350, Amar Singh v. State of U. P. , in which it was held that the scope of the inquiry under Section 137 is only to find whether there was prima facie reliable evidence in support of the case taken by the opposite parties about denial of the existence of public right in respect of the way. It does not require any definite proof at that stage.;