- (1.) A. B. Srivastava, J. Heard the learned Counsel for the applicant, On the facts of this application it can be disposed of finally.
(2.) IN a proceedings under Section 133 of Cr. P. C. the applicant, who was the opposite party before the Magistrate, denied the existence of pubuc right the Magistrate, there upon, as required under Section 137 Cr. P. C. called upon the applicant to produce such evidence as he desired in support of the plea of denial. The applicant made an application for summoning the Tehsildar and the Lekhpal to be examined in support of sucn denial. The Magistrate in his order observed that since the applicant had not produced any other evidence in support of denial, it was not necessary to summon the Tehsildar and the Lekhpal in that connection. By the same order the Magistrate called upon the applicant again to produce his evidence in support of the denial. The applicant was in revision to the Sessions Judge, who rejected the same observing that the Magistrate's order was merely interlocutory in so far as the Magistrate had not passed a final order on the question he was required to decide under Section 137 of the Cr. P. C. Under the scheme of Section 137 Cr. P. C. it is the duty of the person who denies the existence of a public right to lead such evidence as he considers reliable in support of such denial. Such evidence may consist of the oral evidence of the person concerned and such other witnesses as he may deem necessary. The import of the order of the Magistrate appears to be that the applicant first leads the other oral evidence he intends to lead in support of the denial and then the question of summoning, or, otherwise, of the Tehsildar and the Lekhpal may arise. Accordingly, the application under Section 482 Cr. P. C. is disposed of with the observation that the applicant will produce before the Magistrate such reliable evidence as is within his control to produce, including examining himself, and simultaneously he may move the Magistrate to summon the Lekhpal and the Tehsildar and the said prayer may be considered and disposed of on merits according to law. Thereafter final order on the question of denial of public right as required under Section 137 Cr. P. C. will be passed by the Magistrate. The application is disposed of accordingly. Order accordingly. .;