ZILEDAR Vs. STATE OF U P

JUDGEMENT

(1.) By means of this petition filed under Section 482 Criminal Procedure Code the only question which has been raised by the petitioners is whether it is within the competence of a magistrate to allow cross-examination of the witnesses produced in an enquiry held by him under Section 137 (2) Criminal Procedure Code in support of the denial of the opposite parties of the existence of the public right. The facts of this case giving rise to this question may first briefly be stated.

(2.) A proceeding under Section 133 Criminal Procedure Code was initiated against the petitioners at the instance of Mewa Ram and Hussain Khan opposite-parties Nos. 2 and 3 alleging that they have, by encroaching upon a land belonging to the Gaon Sabba, caused obstruction to a public pathway existing on that land. On receipt of notice of these proceedings, the petitioners appeared before the. Magistrate concerned and denied the existence of any public pathway on the disputed land. The Magistrate then fixed a date for holding an enquiry under Section 137 Criminal Procedure Code for ascertaining the denial of the existence of the public pathway but the enquiry could not proceed on account of a revision filed by the petitioners before the Sessions Judge. On dismissal of this revision, the enquiry under Section 137 Criminal Procedure Code was again resumed by the Magistrate. During that enquiry the petitioners produced witnesses in support of their denial of existence of the public pathway on the disputed land. The Magistrate permitted the complainants- opposite parties Nos. 2 and 3 to cross-examine these witnesses despite petitioners objection made before him by means of their application dated 12.5.1983. A revision (Criminal Revision No. 37 of 1983) against the order of the Magistrate made before the Sessions Judge was also dismissed on 28.1.1984. The petitioners have now filed this petition.

(3.) According to Sri Pradeep Kumar, counsel for the petitioners, the learned Magistrate had no jurisdiction to permit the opposite parties Nos. 2 and 3 to cross-examine their witnesses produced in support of their denial of existence of the public pathway on the disputed land because, an enquiry under Section 131 Criminal Procedure Code is an enquiry of an ex-party nature made by the Magistrate only for the purpose of satisfying himself whether there is a prima facie reliable evidence of denial. At this stage the complainants party cannot participate in the enquiry even for cross-examining the witnesses adduced in support of the denial of the public right claimed by that party. At this stage be is a mere spectator. In support of this contention, he placed reliance, on Chandra Deo Singh v., Prakash Chandra Boset, Darshan Ram v. The State2 and Ram Protap v. Ram Autar3. None of the above-mentioned cases is of any help to the petitioners. Before adverting to them, it would be appropriate to examine Section 137(2) Criminal Procedure Code which defines the scope of such an enquiry. It reads as tinder: If in such enquiry the Magistrate finds that there is any reliable evidence in. support of such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by the competent court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 138. The language of the section is plain and suffers from no ambiguity whatsoever. It contemplates a determination in the enquiry whether there is any reliable evidence in support of the denial of the existence of the public right. The word reliable preceding the words, evidence in support of such denial make it abundantly clear that in this enquiry the Magistrate has to satisfy himself about the reliability of the evidence. In the process of his satisfaction about the reliability of such evidence, the Magistrate can always test the veracity of the witness or get it tested. It is now well settled that the most important mode of testing die veracity of witnesses is by cross-examination. The cross-examination of witnesses produced in support of denial of a public right is, therefore, permissible for enabling the, Magistrate to satisfy himself about the reliability of these witnesses. This cross-examination can be done either by the Magistrate himself or he may permit the same to be done by the complainants party.