TIRKHA Vs. STATE THROUGH BHIKARI SINGH

JUDGEMENT

(1.) THIS revision arises out of proceedings Under Section 133 Code of Criminal Procedure which has been pending in court since August 1960. The first order passed by the learned Magistrate on the 22nd of September 1961 was quashed by this Court on a reference made by the learned Civil and Sessions Judge, Bulandshahr and the case was remanded back to him to decide it afresh in accordance with law. It is really unfortunate that the present order of the learned Magistrate dated 31.7.1963 also suffers from an incurable legal defect and has to be quashed.

(2.) ON a complaint filed by Bhikari Singh, a conditional order Under Section 133 Code of Criminal Procedure was passed by the learned Magistrate asking the applicant to clear the encroachment from the alleged public way or to show cause. In response to the notice the applicant filed an objection on 23.11.l960 denying the existence of any public way. On 1.5.1961 the learned Magistrate vacated his order dated 12.8. 1960 and passed another conditional order to the same effect. Thereafter, it appears from a perusal of the order sheet of the case that the learned Magistrate proceeded to examine the evidence led by the parties and ultimately on 22.11.1961 passed an order making his order of 12th August 1960 which has already been vacated by him absolute. After the remand of the case to the Magistrate another order has been passed on 31.7.1963 making the conditional order dated 1.5.1961 absolute Under Section 133 Code of Criminal Procedure on. the basis of the evidence which had all ready been recorded when the earlier order of 22nd of September 1161 was passed.

(3.) THERE can be no doubt that the procedure followed by the learned Magistrate is wholly unwarranted in law and as such it has vitiated the whole proceedings. As soon as an objection was raised by the applicant denying the existence of a public way, it was the duty of the Magistrate, first to hold an inquiry within the provisions of Section 139 -A of the Code and if there was any reliable evidence in support of such denial, it was incumbent on him to stay the proceedings until the matter of the existence of such right has been decided by a competent civil court.