CHIRANJI LAL Vs. STATE OF U P

JUDGEMENT

(1.) N. B. Asthaaa, J. An application under Section 133 Crpc was filed by one Govendranjand alleging that the present revisionists have encroached upon public passage. Conditional order was passed. The revisionist appeared and relied against show cause notice issued to them. The Addl. City Magistrate (II), Agra vide his order dated 11-8-92 dropped the proceedings under Section 133, Crpc directing Govendranand to seek his remedy in a civil court. Aggriev ed by this order Govendranand preferred criminal revision No. 384 of 1992 which was decided on 1st. February, 1995 by Vth Addl. Sessions Judge, Agra. He was of the opinion that the proper procedure has not been followed and that compliance of Section 137 Crpc has not been made. He allowed the revision and remanded the matter back to Addl. City Magistrate (II) to decide the case in the light of the observations made in the body of judgment. Aggrieved by it Chiranji Lal and others have come to this Court in revision.

(2.) IT has been argued that compliance of Section 137 Crpc has been duly made by the Magistrate concerned and that the revisional court was in error coming to the conclusion that the procedure dresser bed by Section 137 Crpc has not followed. This Section lays down the procedure where exis tence of public right is denied. IT says that when the person against whom conditional order has been made appears and denied existence of any public right in respect of the way etc. , the Magistrate shall before proceeding under Section 138 Crpc esquire into the matter and if such enquiry the Magistrate finds that there is any reliable evidence in support of such denial he shall stay the proceeding unless the matter of existence of such right has been decided by a competent court and if he finds that there is no such evidence he shall proceed as laid down in Section 138 Crpc. Sub-section (3) of Section 137 Crpc lays down that where a person failed to deny the existence of a public right or having made such denial has failed to adduce reliable evidence in support thereof shall not in subsequent proceedings be permitted to make any such denial. While proceeding under Section 137, Crpc the Magistrate is required to take evidence of opposite party alone and in case he came to the conclusion that the denial of existence of public right in respect of the way is bonafide then he would stay the proceedings and direct the other party to get the right established in a competent civil court.