V.N.Verma, J. - (1.) THIS revision (has arisen out of a case under section 133 Cr. P. C.
(2.) THE subject matter of dispute in this case is a piece of land situate in Qasba Machhali Shahar, district Jaunpur. It appears that on that land the applicant started making some construction. THE local police objected to bis making construction on that land on the plea that it was part of a public Rasta. When the applicant insisted on making construction on that land the police moved S.D.M. Machhali Shahar to initiate proceedings against him under section 133 Cr. P. C. Prima facie feeling satisfied that the complaint made by the police was correct, the learned Magistrate issued a notice to the applicant asking him to desist from making the construction in question and also to show cause why the order passed by him be not made absolute. THE applicant showed cause in pursuance to the notice served on him and denied the existence of any public Rasta on the disputed land. THE Magistrate heard both the sides, inspected the spot and held that the northern portion of the disputed land was part of public rasta. Having held so he fixed a date for proceeding with the case under section 138 Cr. P. C. Feeling aggrieved with the order passed by the Magistrate, the applicant has come up in revision to this Court. I have heard the learned counsel for the applicant at sufficient length and after doing so I am firmly of the view that this revision must be allowed. On the face of it, the order passed by the Magistrate is patently incorrect and cannot, therefore, be allowed to stand. Once the applicant had put in appearance and had denied the existence of a public Rasta on the disputed land the only thing that the Magistrate could have done in the first instance was to find out whether the denial made by him was correct or not. And to find out whether the denial made by him was correct or not he should have held a regular enquiry and called upon the applicant to lead evidence in support of his denial. I find that the Magistrate did nothing of the sort. Instead what the Magistrate did was that he heard both the sides and gave a finding that a part of the disputed land was a public Rasta. It was not open to him to give that finding at the stage at which he gave it. At the stage of section 137 Cr. P. C. the only finding that the Magistrate could have given was whether the denial made by the applicant was correct or not. If the Magistrate found the denial to be correct then that was the end of the matter. Thereafter he could do nothing but to stay the hearing of the case. If on the other hand he found the denial to be incorrect then it was open to him to proceed with the case under section 138 Cr. P. C. At this stage he could have taken evidence of both the parties and then decided the question whether the disputed land was part of a public Rasta or not. Before the stage of section 138 Cr. P. C. was reached it was not open to the Magistrate to hold that the disputed land was part of a Public Rasta. Therefore, as it is, there can be no doubt about the fact that the order (order dated 15-7-1976) which the Magistrate had passed in this case was a wholly erroneous order. In the result, I allow this revision and set aside the impugned order dated 15-7-1976. The case is remanded and the Magistrate is ordered to decide the case in the light of the observations made above. Revision allowed.;