- (1.) J. C. Mishra, J. Heard learned counsel for the revisionist and the learned Additional Government Advocate.
(2.) THE learned Additional Sessions Judge has set aside the order under Section 133, Cr. P. C. on the ground that S. D. M. committed illegality in directing both the parties to adduce evidence. THE learned counsel for the revisionist contended that the order is erroneous. Section 137, Cr. P. C. provides spe cial procedure if a conditional order under Section 133, Cr. P. C. is passed and the personal against whom the order is made if he denies the existence of public right the Magistrate is required to enquire into the matter before proceeding under Section 138, Cr. P. C. In case he finds that the evidence adduced by the person concerned is reliable he is required to stay the proceeding until matter of the existence of such right has been decided by a competent Court. On the contrary if he finds there is no reliable evidence he is required to proceed as laid down in Section 138, Cr. P. C. The Magistrate committed illegality in recording the evidence of both the par ties under Section 138, Cr. P. C. before making enquiry as contemplated Sec tion 137, Cr. P. C. The learned counsel for the revisionist vehemently contended that ut most the Magistrate can be said to have committed irregularity which is curable. He has referred to a decision of a Division Bench of this Court in Anand Kishore v. State, 1974 Crl. LJ 1321.
(3.) THE aforesaid decision cited by the learned counsel for the revisionist is of no help to the revisionist but on the contrary it has been held in this decision that it is not a case of irregularity but illegality. THE relevant paragraph is reproduced below: "14. If the Magistrate holds a joint enquiry under Sections 139-A and 137, Cr. P. C. (old Code) or allows the complainant to adduce evidence in rebuttal of the evidence of the objec tor and scrutinises or weighs the evidence of the parties with a view to determine the truth of the denial or to arrive at the finding whether the non-existence of the public right is conclusively established it would not be a case of mere ir regularity which could be cured by Section 537, Cr. P. C. (old Code) but would be beyond the jurisdiction of the Magistrate. " In view of the aforesaid observa tion the order passed by the Magistrate was illegal and was rightly set aside. The learned Magistrate shall proceed to decide the case in accordance with law.;