ATUL KRISHNA SAHOO Vs. STATE

JUDGEMENT

(1.) This Rule is directed against the order of the learned Magistrate, passed by him on the 23rd November, 1964, in a proceeding under Section 133 of the Code of Criminal Procedure. The matter was gone into by him under Section 139-A of the Code of Criminal Procedure. He found that there was no reliable evidence in support of the denial as to the existence of the public right. He adjourned the case for hearing to the 6th January 1965.

(2.) The matter arose in the following circumstances. The petitioners Nos. 1 and 2 Atul Krishna Shahoo and Pratul Krishna Shahoo were served with a notice dated the 31st January 1961, drawing up a proceeding against them under Section 133 of the Code of Criminal Procedure. The notice purported to be in the following terms :--

(3.) In this notice it has been clearly stated that the petitioners have raised a cross bund over the southern portion of Khal in Kishori-mohanpore which bears the C. S. Dag No. 2101 and that the petitioners have also raised a cross bund over the offset land abutting Government embankment to the west bearing C. S. Survey Plot No. 2050 corresponding to revisional survey Plot No. 2126, with the obvious purpose of converting the said Khal into a fishery. On receipt of such notice the petitioners, accordingly, entered appearance before the learned Magistrate and denied the existence of public right in respect of the aforesaid plots Nos. 2050-2126 and 2101=2201 (Keoratala Khal), The learned Magistrate was not satisfied that the finally published record of rights in respect of the Keoratala Khal was a piece of reliable evidence within the meaning of Section 139-B (Section 139-A?) of the Code of Criminal Procedure. With regard to the bund over the offset land (2050-2126), the petitioners before me, produced rent receipts granted on behalf of the recorded tenanf Khagen Das Parul. It may be said at this place that the petitioners produced several rent receipts exhibit 6 series and 7 series. The learned Magistrate entered into the details of the matter and has come to the conclusion, that this being the position, and the oral evidence as adduced by the first party, namely, J. L. R. O. have in all fours negatived the contention of the second party-petitioners before me. and this gave rise to his conclusion that the matter under Section 133 Cr. P. C. should be proceeded with. It is not disputed by the learned Advocate, appearing for the opposite party, that actually the revisional settlement record of rights, in so far as the Keoratala Khal is concerned, is in favour of the petitioners, but inasmuch as there is a dispute as to whether this should be treated as a public channel or as a private channel, the learned Magistrate was justified in entering into the merits of the case so far as reliability of the evidence as envisaged in Section 139-B (139-A ?) Cr. P. C. is concerned. As regards the first matter, namely, Keoratala Khal, Mr. Chatterjee, appearing for the petitioners, has argued before me that this Khal was taken settlement of by the petitioners in 1952 from the Latdar Bmoda Moyee Dassi and by virtue of this settlement, it was rightly recorded in the name of the petitioners. His (sic) contention is that the learned Magistrate went beyond his jurisdiction by entering into the question whether there has been any rebutting evidence as to the presumption of correctness arising out of the settlement record of rights. The expression "reliable evidence" as used in Section 139-B (139-A ?) Cr. P. C. means evidence on which a competent court may place reliance. It does not mean 'evidence" which definitely established the right or claim. This is opposed to proved evidence. It is not disputed by Mr. Chatterjee that such reliable evidence must not be legal evidence but the learned Magistrate has to satisfy himself that the evidence does not appear to be unreliable or forged. Undoubtedly, in so far as the scope of Section 139-B (139-A ?) Cr. P. C. is concerned, it is not the function of the Magistrate to weigh the evidence to come to the conclusion as to whether the alleged right does or does not exist. He should take the evidence as it stands and see whether on the face of it, it could be concluded that the evidence was false and, therefore, unreliable. Such a contingency, in my opinion, does not arise in view of the fact that the settlement record of rights which was recently published was placed before the learned Magistrate and which goes in support of the present petitioners, regarding their private right in support of Keoratala Khal In support of this contention Mr. Chatterjee has placed before me a decision reported in 34 Cal WN 957 : (AIR 1931 Cal 2), Satish Chandra v. Krishna Kumar. Their Lordships have held inter alia, that