TAJPAL Vs. MANGOO

JUDGEMENT

(1.) THIS criminal reference has been made by the Sessions Judge, Hardoi. It appears that an application Under Section 133 of the Cri. miminal P. C. , was moved by Tejpal before the Sub-Divisional Magistrate, Hardoi with the allegation thai; the opposite parties had constructed a wall unlawfully en a public way and the same was causing nuisance. The Magistrate thereupon issued a conditional show-cause notice to the opposite parties under Sub-section (l) of Section 133 of the Criminal P. C. The opposite parties appeared before the Magis. tiate and denied that the land in dispute was a public way. The Magittrate then proceeded with an enquiry Under Section 139a of the Criminal P. C. and on the basis of the evidenoe pro. duced by the opposite parties in support of the denial came to the conclusion that the disputed land was not a public way and drop, ped the proceedings. Against that order a revision was filed by Tejpal which was heard by the Sessions Judge, Hardoi. The Sessions Judge held that once the Magistrate hal found that there is reliable evidence in support of the denial the proper prooedure for him to adopt as prescribed under Subsection (2) of Section 139a of the Criminal P. C. , was to stay the proceed, ings until the matter of the existence of such light; was decided by a competent Civil Court and not to drop the proceedings. He bas therefore recommended that the order passed by the Magistrate should be set aside and he should be direoted to stay the proceedings.

(2.) I have heard the. learned Counsel for the parties and I am of theopihion that the view taken by the Sessions Judge is correct. Having regard to the wordings of sub,s. (2) of Section 139a of the Criminal P. C. , when the existenoe of a'right of way was disputed or denied by the opposite parties all that the Magistrate was required to determine wag whether there is , 'any reliable evidence in support of such denial' In other worls, the duty of the Magis-trate in the-enquiry Under Section 139a is to de-termine whether the denial of the right by the opposite parties was frivolous and unfounded or whether there was a prima facie case in support of the denial. If be Came to the. conclusion that the denial was frivolous and unfounded the' could proceed with an enquiry as laid down Section 137 of the Criminal P C. On the theriband; if he found. that there was reliable evidenoe in support of suoh denial then it was not for him to determine: whether a publio way did or did not exist on the disputed land as to do so would'be to usurp the function of the Civil Court. The question of title should not be deter, mined in a summary manner by a Magistrate. That properly belongs to the provinoe of Civil Court and therefore on a finding mat there was reliable evidenoe in support of the denial the law requires the Magistrate to stay the proceedings until the matter about existence of the disputed right is decided by a competent Civil Court. That being the position of law, the reference is acoepted. The order passed by the Magis. trate dropping the proceedings is set aside and the Magistrate is direoted to stay the proceed, ings Under Section 133 of the Criminal P. C. , until the matter of as existenoe of publio right has been decided by a competent Civil Court.