- (1.) C. A. Rahim, J. This Revision has been directed against the orders dated 19. 2. 1991 and 28. 7. 1990 passed by the Additional Sub-Divisional Magistrate Banda in case No. 4/xi rejecting the applicants' petition for recalling the ex pane order dated 28. 7. 1990, whereby the evidence of the applicants under section 137 (2) Cr. P. C. was held to be insufficient.
(2.) THE allegation was that the applicants blocked public passage by constructing one gate. Local inspection was done to assess merits of the allegation. THE applicants denied existence of the public right and the learned Magistrate proceeded in examining the witnesses under Section 137 Cr. P. C. THE grievance is that the learned Magistrate did not complete the said proceeding and by an order dated 28. 7. 1990 it was stopped abruptly with the finding that SAKSHYA PURN NAHI HAI and fixed next date for taking evidence of the opposite parties. An application was filed by the applicants on 16. 1. 1991 for recalling the said order. THE learned Magistrate by an order dated 19. 2. 1991 rejected the said application and hence this Revision. The learned counsel has submitted that when existence of public right is denied under Section 136 Cr. P. C. it is duty of the Magistrate to give an opportunity to the second party (applicants before me) to produce evidence in respect of the denial as per the provisions of Section 137 Cr. P. C. and to pass a reasoned order. He has submitted that the learned Magistrate did not give proper opportunity to the applicants to adduce evidence to establish their case of denial and abruptly ended it without passing any reasoned order as to the stand taken by the applicants. He has referred the case of Abdul Ghani v. State of U. P and another reported in 1982 U. P. Crl. R. 200 and the case of Ram Pratap and others v. Ram Autar and others reported in (1982 U. P. Cr. R. 211) In the former case it was decided, that a finding whether denial of public right was substantial or not, based on evidence adduced in this respect, such finding is mandatory before proceeding to the next step under Section 138 Cr. P. C. In the later case it was decided that the Magistrate must consider whether there is reliable evidence in support of the denial non- observance of that provision is bound to defeat the valuable right conferred as to involve prejudice. Learned counsel for the opposite parties has submitted that the revision is not maintainable as the impugned orders were not final orders but inter-locutory and as such the revision is barred under Section 397 (2) Cr. P. C. The second point is that it is also barred by limitation. It has been submitted that after passing the first order on 28. 7. 1990 the learned Magistrate proceeded in taking evidence of the opposite parties and at that stage the petition was filed on behalf of the applicants on 16. 1. 1991 to recall the previous order. On that petition another order was passed on 19. 2. 1991. So according to him there was considerable delay in filing the petition to recall and that the first order dated 28. 7. 1990 is barred by limitation.
(3.) THE instant revision was filed on 15. 3. 1991. So it is apparent from the office record that the order passed by the learned Magistrate on 28. 7. 1990 is barred by limita tion. From the order dated 19. 2. 1991 it appears that the petition to recall the order was filed by the applicants on 16. 1. 1991 i. e. after about six months of the order passed by the learned Magistrate. It has been stated by the learned Magistrate while considering the petition of the applicants for recalling the order dated 28. 7. 1990 that after passing that order the applicants participated in the proceeding and 15 adjournments were obtained in connection with taking of the evidence of the opposite parties (Revisionists and during that period one witness was examined by the opposite parties and cross-examined by the applicants (O. P before me) and cross-examination of the second witness was pending when the said petition was filed. So it appears that there was considerable delay in filing the application for recalling the order dated 28. 7. 1990. Learned counsel for the Revisionist has referred the case of State of U. P. v. Gauri Shankerand others reported in (1992 (29) A. C. C. 525) and has submitted that the revisory power is discretionary and unfettered by limitation. But this decision is not applicable in this case since the issue was that whether the delay can be condoned even without issuing notice to the accused-opposite parties. In that case an application for condonation of delay was filed but in the instant case no application for condonation of delay has been filed. Accordingly the applicants cannot claim that the provisions of Criminal Procedure Code in respect of limitation will not apply in this case.;