R.C.Deepak, J. - (1.) This criminal misc. writ petition has been filed for quashing the order dated 15.4.2005 passed by the learned Sessions Judge, Saharanpur in criminal revision No. 42 of 2005 Budhwa and others Versus State of U.P. and the order dated 24.02.2005 passed by the Upper Zila Magistrate, Deoband, Saharanpur in case No. 7/2003-2004.
(2.) I have heard Sri Ashfaq Ahmad Ansari, learned counsel for the petitioner, Sri N.C. Tripathi, learned counsel for the respondents No. 4 to 11, learned AGA for the State and perused the record.
(3.) The present petition relates to Section 133 Cr.P.C. Wherein the existence of public / private way has been denied by the petitioner. The Magistrate directed him to lead evidence in support of his contention and enquired into the matter as provided under Section 137 (1) (2) Cr.P.C. The Sub-section (2) of Section 137 Cr.P.C. is relevant for the purpose of the present petition which is reproduced as under: "If in such inquiry the Magistrate finds that there is any reliable evidence in support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138.";