MAHAVIR SINGH Vs. STATE

JUDGEMENT

(1.) AN application was filed by Gajraj Singh under section 133 CrPC alleging that Mahavir Singh sand others had obstructed a public path way in village Jitauli, Police Station Nidhauli Kalan District Etah. The Magistrate called for a report from the police on 28th August, 77. He passed a conditional order on 29th September, 77. On appearance, Mahavir Singh and others, who are present applicants, denied the existence of the Public Path way. The trial court directed the applicant to lead evidence in support of denial the existence of the Public Path way. The trial court directed the applicant to lead evidence in support of denial under section 137 CrPC. On a consideration thereof, the trial court rejected the objection, filed by the applicants and directed the parties to produce evidence under Section 138 CrPC vide order dated 5th April, 1978. Aggrieved thereby a revision was filed by Mahavir Singh, which has been dismissed by the Sessions Judge Etah vide order dated 13th December, 78, hence this application under section 482 CrPC.

(2.) I have heard learned counsel for the parties and have also perused the impugned orders, and the affidavits on the record.

(3.) COUNSEL for the applicants has urged a number of points, but in the view that I am taking, it is not necessary for me to discuss them all. It appears that a civil suit with respect to the same property had been filed by Amrit Singh, who is the uncle of Gajraj Singh against Makavir Singh and others. That civil suit no. 155 of 1977 was filed much earlier than the instant application under section 133 CrPC, filed by Gajraj Singh. A copy of the plaint in that civil suit filed by Amrit Singh was filed before the Magistrate along with the copy of the order-sheet, which indicated that the Munsif had directed the parties to maintain the status quo with respect to the disputed property on 21st May, 77. The objection of the applicants was that since the rights of the parties with regard to the subject matter in dispute was already pending prior to the instant application under section 133 CrPC, and since the rights of the parties would be decided therein, the Magistrate was bound to stay his hands under section 137 (2) CrPC. Both, the trial court as well as the Sessions Judge, have accepted the position that civil suit no. 155 of 1977 had been filed and that an interim order for maintaining the status quo had been obtained therein as early as 21st May, 77 In my opinion, the pendency of the suit having been accepted by the court below as also the existence of the stay order, the documentary evidence filed on behalf of the applicants in connection therewith must be deemed to be reliable evidence in support of the denial of the public right. Both the courts below have completely misunderstood the law in refusing to stay the hearing of the application under section 133 CrPC and directing the parties to adduce evidence under section 138 CrPC.