KISHORIMOHAN PRAMANIK Vs. KRISHNABIHARI BASAK

JUDGEMENT

(1.) THE point involved in this Rule is about the construction of Section 139-A, Criminal P.C. THE construction, to our minds is reasonably clear. 2nd Party, against whom the provisional order has been made, is to appear before the Magistrate and to state what his case is; if he is inclined to deny the existence of the public right in question, he must say so. If he has denied the existence of the public right, he is to be required to produce reliable evidence in support of his denial and it is needless to add that such evidence should be legal evidence. THE Magistrate is to find whether there is reliable evidence in support of the 2nd party's denial of the existence of the public right. Obviously, in order that the Magistrate may satisfy himself whether there is reliable evidence in support of the denial, he may allow cross-examination of the witnesses adduced by 2nd party in support of such denial. THE enquiry being of a summary character, it is not intended that 1 party should be required to adduce evidence to contradict the case sought to be made out by 2nd party. But it must be understood that there is nothing in Section 139A which can exclude the exercise of the Court's powers under Section 540, Criminal P.C. It is not necessary to discuss the cases which have been cited. With this intimation of our opinion let the record be returned to the trying Magistrate.