1. This is a reference by the Sessions Judge of Azamgarh in proceedings under Section 133, Criminal P.C.
2. It does not appear that the Magistrate had in view from the outset at any rate the provisions of Section 139-A of the Code. I have already had to comment on the unfortunate position in which this section has been placed in the Chapter. It should really have found place immediately after Section 135. When a notice has issued under Section 33 and been duly served under Section 134, the person to whom the notice is sues and whom for convenience sake I will call the opposite party must then either perform that which he is called upon to do, or appear to show cause why he should not. If he decides to show cause he will also have to decide whether he wants the matter tried by a jury, and if he does want it so tried, he will make the claim.
3. At this stage Section 139-A should have been introduced, for it is provided that upon the opposite party's appearance the Magistrate should forthwith ask him as to whether he denies the existence of any public right in respect of the way, etc. It is only after the question contained in Section 139-A has been decided that the Magistrate will then, if he decides to go on with the case at all, proceed under Section 137 to take evidence and he will take that evidence either sitting alone or, if an application has been made for a jury, he will under Section 138 proceed to the appointment of a jury. Now, the Magistrate in the present case appears to have overlooked Section 139-A altogether, though it is true that in the general inquiry which he held under Section 137, and which inquiry should not take place until after the decision required by Section 139-A, he has held that there was no public right of way. Now, this departure from the procedure provided is not immaterial for while dealing with the matter as if he was acting under Section 137, he would direct his mind to arriving at a final determination of the question; while if, as he should have done, he had considered the terms of Section 139-A, he would have only had to consider whether there was any reliable evidence in support of the opposite party's denial that there was any public right of way. I have already explained in an earlier judgment, Manohar Singh v. King-Emperor : AIR1929All220 , what I appreciate to be the object of Section 139-A, namely, that it was to substitute a test of whether there was any reliable evidence in support of the opposite party's claim for the test which the Courts had gradually come to impose, whether the accused's claim was bona fide-a test which had proved very unsatisfactory.
4. Approaching this case from the point of view, then, not whether the opposite party had finally established that there was no right of way but from the point of view whether there was any reliable evidence, I find that there was a considerable body of evidence as set out in the judgment of the learned Sessions Judge which should have given the Magistrate pause and disposed him to act under Sub-section (2), Section 139-A.
5. In the reported case to which I have referred I have spoken of the discretion which is given to the Magistrate, and manifestly he has a discretion; but it is equally manifest that it is a discretion which must be judicially exercised, and in the present case I have stated the reasons which dispose me to hold that he entirely overlooked Section 139-A and applied the wrong test to the evidence. In view of the nature of the evidence as set out in the order of the learned Judge referring this case, I am satisfied that proceedings should have been stayed, and I accordingly set aside the order of the Magistrate and direct that under Section 139-A Sub-Section (2) proceedings be stayed until the matter of the existence of the public right of way has been decided by a competent civil Court.
6. Let a copy of this judgment be sent to the Magistrate.