MUNSHI GOPE AND BUJHAWAN GOPE Vs. RAGHO PD. SINGH

JUDGEMENT

(1.) This application in revision is directed against the order of the learned Magistrate allowing permission to the opposite party to cross -examine the witness examined on behalf of the petitioners. The opposite party filed an application before the Sub -divisional Magistrate, Patna, for starting a proceeding under Sec. 133, Code of Criminal Procedure, against the petitioners, on the ground that they encroached upon a public path in village Udaini on the 26th December, 1968. The matter was referred to the police and on receipt of the report on the 14th January, 1969, notices were issued to the petitioners under Sec. 133, Code of Criminal Procedure. On the 7th April, 1969, the petitioners (second party to the proceeding) appeared before the learned Sub -divisional Magistrate and denied the public character of the land. The case was thereafter transferred to the file of Shri A. Kumar, Magistrate with first class powers, for disposal. On the 13th May, 1969, the learned Magistrate directed the petitioners to adduce evidence in support of their denial. On the 23rd June, 1969, one witness was examined on behalf of the petitioners and he was cross -examined in part on behalf of the opposite party. The matter was put up on 1st July, 1969, for further cross -examination. On this date a petition was filed on behalf of the petitioners stating that the opposite party had no right to cross -examine the witness examined by them in support of their denial of the public character of the land in dispute. The learned Magistrate did not agree to this, hence this application in revision. The present application was put up for hearing before K.B.N. Singh, J., who has referred the matter to Division Bench and that is how the case has come before us.

(2.) The short point for decision is as to whether an applicant under Sec. 133, Code of Criminal Procedure, can cross -examine a witness examined on behalf of the person who denies the public character of the land. In the instant case, as already stated, the learned Magistrate has permitted the applicant (first party to the proceeding under Sec. 133) to cross -examine the witness examined by the petitioners who denied the existence of public right of way on the land in dispute. In this connection, it would be relevant to quote Sub -sections (1) and (2) of Sec. 139A, Code of Criminal Procedure:

(3.) So far as this Court is concerned, it has been consistently held that if the ex -parte evidence produced in support of the denial is reliable in the opinion of the Magistrate, he should stay the proceedings unless the matter of the existence of such right has been decided by a Civil Court. The earliest decision on the point is reported in (1) : I.L.R. 4 Pat 783 (Thakur Sao V. Abdul Aziz). It was held in that case that all that the law required was that the party proceeded against under Sec. 133 should appear before the Magistrate and, if he denied the public right, he should produce some evidence in support of his denial. If this evidence was reliable, the jurisdiction of the Magistrate was ousted. Their Lordships laid down: