MUSSADI Vs. STATE

JUDGEMENT

(1.) This revision arises out of an order dated 9 -2 -1970 passed by the learned SDM Deoband, Saharanpur, fixing a date for evidence u/S. 137 CrPC. After perusing the order recorded by the learned Magistrate and hearing learned counsel for the parties, I am of opinion that the order in question must be set aside. It appears that following an application made by one Siaram that the applicant, together with some other persons, had raised a wall which it was said, caused an obstruction to a public path, a report of the Station Officer concerned was called. The said report favored the allegations of Siaram with the result that a conditional order u/S. 133 CrPC was passed on 15 -9 -1969. The applicant and the others upon whom the said order was served appeared and filed their written statements whereby they denied the raising of any construction on any public passage. In regard to the place where the raising of the wall was alleged, the case set forward was that there never had been any public passage at the said place. In support of the aforesaid denial, two witnesses were examined. One of these was Telu Ram and the other was the applicant Musaddi Lal himself. Both of them, in the course of their statements, asserted that there never had been any public passage over the land in question as alleged by Siaram. An abadi map of the area concerned was also filed. The said map did not show the existence of any passage and reliance was placed on the said map as supporting the plea of the applicant and the other opposite parties that no public passage ever existed on the land in question. The order recorded by the learned Magistrate runs as follows: - -

(2.) It is true that the expression "reliable evidence" in cl. (2) of S. 139A of the CrPC does not mean merely evidence which prima facie is sufficient to support the denial but means evidence which may reasonably be considered as reliable. It is also true that the question as to whether such evidence is reliable or not is primarily a matter resting in the scrutiny and satisfaction of the Magistrate concerned, the test of the reliability being both subjective as well as objective. At the same time a mere 'Ipse dixit' of the learned Magistrate describing the evidence of witnesses as unreliable, without giving any reasons in support of that view is far from satisfactory. The relevant part of the learned Magistrate's order, quoted above, records no reason whatsoever why, in the opinion of the learned Magistrate, the evidence given by Teluram and Mussaddi Lal was unreliable. In regard to the documents filed by Mussaddi Lal and other opposite parties which unquestionably related to the area of the land in dispute, the learned Magistrate observed: - -

(3.) The only other material, apart from the evidence of the opposite parties mentioned by the learned Magistrate, consisted of the police report and tahsil report which was in favour of the allegations made by Sia Nand. These reports were hardly evidence and, in any case, had little bearing on the question of reliability of the evidence led on behalf of the applicant and the other opposite parties.