- (1.) PALOK Basil, J. Rameshwar Prasad and 21 others have challenged the order dated 18-6-1992 passed by Sub-Divisional Magistrate, Haudia Allahabad in case No. 20-A/37 of 1991-92 under Section 133, Cr. P. C. whereby it was directed that those proceedings would remain stayed until the parties get their rights determined under Section 137 (2), Cr. P. C.
(2.) THE small facts are that the applicants made a grievance on 15-9-1989 before the Sub-Divisional Magistrate that opposite party Jang Bahadur and others have made illegal construction on a public pathway and that has caused obstruction which should be removed. A conditional order was passed by the Magistrate on 21-5-1990 calling for a report from the Naib-Tehsildar. After the service of the conditional order on the opposite party they tiled their written statement on 23-7-1990. A police report was also called which is dated 2-12-1990. On considering the materials the Magistrate passed a final order on 13-3-1991 to the effect that the illegal construction should be removed forth with. Aggrieved by the aforesaid order dated 13-3-1991 a revision was preferred before the Sessions Judge in which a final order was passed on 22-11-1991 whereby the revision stood allowed on the matter was remanded to the Magistrate's court. The final order in the revision reads as follows: "the revision application is hereby allowed. The order passed by the learned Magistrate is hereby set aside and the case is remanded back to him for disposal afresh in accordance with law after affording the parties to adduce evidence both under Sections 137 and 138, Cr. P. C. The parties are directed to appear before the learned Magistrate on 12-12-1991. (Sd) R. S. Pandey IIIrd Addl. Sessions Judge, Allahabad 22-11-1991. " After the matter was remanded, the Magistrate followed the pro cedure under Section 137 (2) and put question to the opposite parties. After having done so the Magistrate has passed the impugned order on 18-6-1992. Translated into English the Magistrate's order would read as follows: "under the circumstances the proceedings are stayed and the parties are directed to get existence of their rights determined through competent court. Record should be sent to Record room. (Sd) K. N. Dubey, Sub-Divisional Magistrate, Handia, 18-6-1992. "
(3.) IN support of this revision Sri P. P. Yadav, learned counsel for the applicants, Sri R. C. Singh, learned Counsel for the opposite parties and Kumari N. A. Moonis, learned A. G. A. have been heard at length. At the time of admission a counter-affidavit was called whereupon parties have exchanged affidavits and this revision is being disposed of finally at the admis sion stage. Sri P. P. Yadav, learned counsel for the applicants vehemently argued two points. Firstly, it was argued by him that the remand order passed by the Sessions Judge as noted above makes it incumbent upon the Magistrate to record evidence under Section 137 as well as under Section 138, Cr. P. C. In this connection it was argued that no choice or discretion was lent with the Magistrate to bypass the aforesaid mandate of the Sessions Judge and he could not sit in appeal against the superior court's judgment and go to record the evidence under Section 138, Cr. P. C. It will be convenient to take up tha argument first and deal with it before a second argument is touched.;