ARUN KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri L.C. Pandey, learned counsel for the applicant, the learned AGA for the respondents and perused the record.

(2.) A perusal of the aforesaid provision reveals that if the person against whom the order under Section 133 CrPC has been made, appears before the Executive Magistrate, the Executive Magistrate is bound to question him as to whether he denies the existence of any public right in respect of the subject-matter of the case and if he denies existence of any such right, the proper course for the Executive Magistrate is to inquire into that matter before holding a proceeding under Section 138 CrPC. In other words, if the person against whom an order under Section 133 has been made, denies the existence of a public right in respect of the subject-matter of the case, the Executive Magistrate has to hold an inquiry to find out whether or not there is any reliable evidence in support of such denial. If there is reliable evidence in support of the denial, the Magistrate has to stay the proceedings of the case until the matter of existence of the public right has been decided by the competent Court. The Executive Magistrate has jurisdiction to proceed under Section 138 CrPC, only when there is no reliable evidence to show that the alleged right is a public right or there is no denial of existence of any public right. It may also be mentioned that if the person concerned fails to deny the existence of public right or fails to adduce reliable evidence in support of such right, he will not be permitted to make any such denial in any subsequent proceeding. In view of the legal position as emerged from the provisions of Section 137 CrPC, the proper course for the Executive Magistrate was to hold an inquiry to find out whether or not there is reliable evidence in support of the plea that there exists no public way on the disputed land, specially when the applicant had specifically denied the existence of such right.