KARAM HUSSAIN Vs. STATE OF U P

JUDGEMENT

(1.) K. N. Ojha, J. Instant revision has been preferred against judgment and order dated 12-3-2001 passed by learned Vth Additional District and Sessions Judge, Basti in Criminal Revision No. 271 of 2000, Mohd. Khalil and others v. State of U. P. , whereby revision instituted by opposite parties Nos. 3 to 8 against order dated 2- 8-2000 passed by Sub- Divisional Magistrate, Mehdawal, District Sant Kabir Nagar in Criminal Case No. 21 of 1998, Mohd. Khalil v. Karam Hussain and others, has been allowed and the Sub Divisional Magistrate was directed to decide the case under Section 133 Cr. P. C. rather than to drop it proceedings on the ground that civil suit is pending in Civil Court.

(2.) HEARD Sri S. K. Rai, learned counsel for the revisionists and Sri Anoop Ghosh and Sri Shekhar Yadav, learned A. G. A.

(3.) IT is submitted by the learned counsel for the revisionists that the proceedings were rightly dropped by the Magistrate and reliance has been placed on 1978 All LJ 1288, M/s. Ghulam Rasool Riaz Ahmad v. State. Reliance has also been placed on 1978 Crl. LJ 1052, Purnamasi Kar v. Purandar Kar, in which it was held that Magistrate is required to see whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved. If the evidence adduced by the party against whom the order is made is legal and reliable, there is an end of the matter and the Magistrate has to stay his hands and refer the parties to the Civil Court. "reliable Evidence" as envisaged under Section 139-A means evidence on which it is possible for the Court to place reliance. IT does not mean that the evidence is such that it definitely establishes title to the land. What is meant by the Section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion which is more reliable or should be preferred. The object of Section 139-A is that if the denial of the public pathway involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent Civil Court and not by a Magistrate in a summary inquiry provided under Section 139-A. Where the Magistrate records evidence and also allows the other party to cross-examine the witnesses and then arrives at his decision, his order will not be sustainable.