- (1.) V. N. Mehrotra, J. This revision has been filed against the order dated 1-3-1993 by the Additional City Magistrate I, Allahabad under Section 137 Criminal Procedure Code.
(2.) THE facts, in brief, are that the opposite party Prabhu Dayal Gupta moved an application under Section 133, Cr. P. C. with the assertion that the building in question was in a dilapidated condition and was likely to fall down and was also likely to cause damage to the persona residing in the neighborhood and the passersby. THE learned Magistrate called report from the police and also from City Engineer, Nagar Mahapalika, Allahabad. After the receipt of these reports the learned Magistrate initiated the proceedings under Section 133, Cr. P. C. and issued notices to the opposite parties, who are the present revisionists. Initially the proceedings under Section 133, Cr. P. C. were dismissed by the learned Magistrate but the applicant filed revision which was allowed by the Sessions Court and the case was sent back to the Magistrate concerned for fresh hearing. In reply to the notice under Section 133, Cr. P. C. the opposite parties filed their objections. THEy also, in their statements, denied the existence of any public right. THEreafter the Magistrate recorded the evidence produced by the opposite parties in report of the denial. THE learned Magis trate after considering the evidence produced by the opposite parties came to the conclusion that there was a case of public nuisance and the proceedings cannot be dropped. On these findings he directed the parties to lead their evidence under Section 133, Cr. P. C. In this revision it has been contended on behalf of the revisionist that sufficient evidence has been led before the Magistrate in support of the plea of denial but the learned Magistrate has wrongly rejected that evidence. It has also been contended that the learned Magistrate has assessed and weighed the evidence as if he was finally deciding the matter, instead of finding as to whether there was any reliable evidence in support of the denial. On behalf of the opposite party, however, it has been contended that the evidence produced by the revisionists in support of the plea of denial was wholly unreliable, as has been held by the Magistrate and in the circumstances the lower court was justified in proceeding with the case under Section 133, Cr. P. C. I have heard the learned counsel for the parties and have perused the record of the case. As provided under Section 138, Cr. P. C. when the Magistrate is satisfied on the basis of the report of a police officer or oh other information about the existence of public nuisance he has to issue a notice to the opposite party to remove such nuisance or obstructed etc. requiring the opposite party to show-cause as against the proposed order. If the Opposite party, to whom the notice has been issued, appears before the Magistrate and denies the existence of public right the Magistrate, before proceeding under Section 138, Cr. P. C. has to enquire into the matter as provided under Section i37, Cr. P. C. In such circumstances the Magistrate has to find out whether there is any reliable evidence in support of such denial. In case he finds that there is any such reliable evidence he has to stay the proceedings until the mat ter of the existence of such right has been decided by the competent civil court. In the present case the opposite parties appeared before the Magistrate and denied the public right. The Magistrate then recorded the evidence produced by them in support of such denial. The Magistrate has to find out whether there was any reliable evidence in support of such denial. Reliable evidence means the evidence on which it is possible for the court to place reliance. The Magistrate under Section 137, Cr. P. C. has no power to assess and weight the evidence of the party proceeded against to determine conclusively about the title of the said party, yet he has the power to assess the evidence to determine its reliability. The Magistrate has to satisfy himself as to whether the evidence put forward is false or it could be relied upon. He has to see whether the denial of the public right is frivolous or not. If the person who denies that right is able to proceed some evidence which, prima facie, there is no reason to dis believe, it is not for the Magistrate to examine the evidence on the other side by way of rebuttal and so forth and attempt to arrive at some final decision. Thus the words reliable evidence used in Section 137 means evidence on which it is possible for a competent court to place reliance. It does not mean any evidence which definitely establishes the title of that person.
(3.) IN the case Ram Pratap v. Ram Awart 1982 ALJ 1002, it was held by this court. "whether any place is a public place or a private place is ordinarily a matter within the ambit of civil jurisdiction, on consideration of certain public places and convenience a remedy under Section 133, Cr. P. C. has been provided to meet certain ugly situation" and at the same time when such matter has been brought under the ambit of the criminal jurisdiction the Legislature has taken care to safeguard of the right of the party concerned to a certain extent, with that object in view it has been provided under Section 137, Cr. P. C. (New) corresponding to Section 139-A, Cr. P. C, (old) that the opposite side will be afforded an ex-perte opportunity to give evidence in support of his denial of the existence of such public right as has been set up, if on enquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of existence of such right has been decided by a competent civil court". This matter had earlier come for consideration before a Division Bench of this court in the case Anand Kishore v. State, 1974 ALJ 539, several earlier decisions of this court in the cases Haji Sultan Ahmad v. State, 1964 ALJ 71, Tirkha v. State, 1965 ALJ 241 and Asmani Prasad v. Kamla, 1988 ALJ 464 were relied upon by their lordships. It was held by their Lordships that if in the enquiry conducted by the Magistrate the person concerned adduces reliable evidence in support, of bis denial, the Magistrate shall stay the proceedings until the exis tence of such right has been decided by the competent civil court. The law does not contemplate that in conducting the enquiry the Magistrate should allow the rival parties to lead evidence in support of their respective claim. He is required only to find out that there is some reliable evidence in support of the claim of the person against whom the order under Section 138, Criminal Procedure Code was made. If the Magistrate embarks on a detailed investigation of the rights of the contending parties, he travels beyond the jurisdiction vested in him and his order in such a case would be incompetent and invalid. On examining the present case in the light of the provisions of Section 137, Cr. P, C. and the abovementioned decisions it will appear that the Magistrate has not acted in accordance with law. As will be clear from the last Para on Para 3 of the order by the learned Magistrate, what he has actually done is that he has scrutinized the evidence led by the provisionist Vishwanath Lai vis-a-vis the report submitted by the City Engineer, Nagar Mahapalika, Allahabad, He has been observed that the report of the City Engineer is clear and the opposite parties have not been able to show as to why the same should not be believed. The learned Magistrate has thus placed great emphasis on the report of the City Engineer which was called before initiating the proceedings under Section 133, Cr. P. C. Thus instead of considering only the evidence which has been produced by the opposite parties in support of their plea of denial and finding out as to whether there was any reliable evidence in support of the denial, the learned Magistrate has compared this evidence with the report submitted by the city Engineer, who was not a witness in the proceed ings nor his report was called on behalf of the opposite party. Considering these facts I am remanding the case to the learned Magistrate for a fresh decision, I am at present not examining the other reasons given by the learned Magistrate for rejecting the evidence produced by the opposite parties revisionists. 7, The learned counsel for the opposite party has argued that the report of the engineer examined by the revisionists was not properly proved and so it should not be taken into consideration. In my view learned Additional City Magistrate-I, Allahabad can examine and consider this objection also raised on behalf of the present opposite party, when he re-examines the entire matter. 8. In view of the above findings, this revision is allowed and order dated 1-3-1993 by the Additional City Magistrate I, Allahabad, is set aside. The case is remanded to the Magistrate for a fresh decision in accordance with law and the observations made above. Revision allowed. .;