SUKH LAL GOPE Vs. SATYADEO PRASAD

JUDGEMENT

(1.) THIS application must succeed on the short point that there has been no compliance of the mandatory provisions of Section 139-A, Criminal P. C. The petitioners in the case were second party to the proceeding which was taken under Section 133 of the Code.

(2.) A petition was filed in May 1947 by Satyadeo Prasad, party l for action under Section 133 against the petitioners with respect to these very plots. In that proceeding it was held that the dispute was of a civil nature and did not come within the purview of Section 133. This order was upheld by the District Magistrate who was moved to make a reference to the High Court. In the meantime. in May 1948, a proceeding under Section 144 was started against the parties on the report of the police. The Sub-divisional Magistrate held a local inspection, and on his local inspection he was of the view that plot NO. 271 was an alung and plot No. 273 was a garha on a ditch, and although it was recorded as ghairmazrua malik, it was serving the purpose of irrigation and reservoir of water. H also found that portions of plots Nos. 271 and 272 had been settled by the malik with the petitioners who had made certain constructions upon the lands, i. e. plots Nos. 271 and 272. He accordingly discharged the proceeding under Section 144 and advised opposite party to take fresh proceedings under Section 133. To what extent a fresh proceeding under Section 133 would be justified in the circumstances when a previous proceeding in regard to these plots had failed would be a matter for consideration by the learned Magistrate when disposing of the proceeding under Section 139-A. It appears, however, that after a notice to show cause had been issued, party 2 appeared and denied the existence of a public right on 14-6-1949, and then he was called upon to lead evidence under Section 139-A. The proceedings were then transferred for disposal to the learned Magistrate against whose order this application has bean filed, The learned Magistrate held a local inspection in December 1949 and he appears to have heard the parties, as he says, on 3-6-1950 and then passed the present order. The order itself discloses that he seems to have taken evidence of the opposite party, as in his order he refers to a fard abpasi produced by them, and be also appears to have allowed the opposite party to cross-examine the witnesses produced by the petitioners in the proceeding under Section 139A. In my opinion, there appears to be some misconception about the nature of the procedure to be adopted under Section 139-A, The procedure has been indicated in Thakur Sao v. Abdul Aziz, 4 Pat. 783 : (A.I.R. (13) 1926 pat. 170 : 27 Cr. L. J. 9) where Mullick J. pointed out that the procedure laid down in Section 139-A of the Code, requires, first, that the party against whom a provisional order has been made, shall appear before the Magistrate and deny the existence of the public right in question; and, secondly, he shall produce some reliable evidence: and thirdly, that such evidence shall be legal evidence and shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction to continue the proceeding ceases. He has no jurisdiction to weigh the evidence and decide on which side the balance leans. Ross J. agreed with that decision, and he also observed that the criterion is that the Magistrate should find evidence supporting the denial, which he can pronounce reliable. That is necessary and that is sufficient to oust his jurisdiction. Therefore, it is not open to the Magistrate to balance the evidence at the stage of the proceeding under Section 189A. Here, what the Magistrate appears to have done is that he relies upon the evidence of the witnesses, but he says that their admissions in cross-examination show that there was some kind of a public right in the lands in question. He also refers to the fard abpasi in order to support his conclusion a document which was produced by the opposite party. As I have said, at that stage it is not for him to take evidence of the opposite party. It is only for him to see whether there is reliable evidence in support of the denial of the existence of any public right in respect of the disputed lands. That evidence may not be complete for the purpose of negativing the public right claimed if balanced with the other evidence and materials on record adduced by the other side. It is only at that stage in the nature of an ex parte prima facie evidence, and if that evidence is per se reliable, then the Magistrate should hold his hands and refer the parties to have their dispute settled in the civil Court. In this case there is an additional factor that there was already a proceeding under Section 183, and in that proceeding it was found that, the dispute was of a civil character, and, therefore, the Magistrate refused to take action under Section 133. It is also pointed out by Mr. Kameshwar Dayal on behalf of the petitioners relying upon a decision of this Court in Harnandan Lal v. Rampalak Mahto, 18 pat. 76 : (A. I. R. (26) 1939 pat. 460 : 40 Cr. L. J. 837) that obstruction in respect of a water channel where only some people claim a right of irrigation does not attract the operation of Section 133, Criminal P.C. I would therefore direct that the order of the learned Magistrate should be set aside. He should only consider the evidence adduced on behalf of the petitioner and see if that evidence is reliable to support his denial. He should also consider the other circumstances to which I have referred and then decide whether having regard to those facts it would be desirable for him to proceed under Section 137, Criminal P. C., but in no case should he look to the evidence of the opposite party for the purpose of coming to such a decision. With these observations I would make the rule absolute.