1. A conditional order under Section 133, Criminal P.C. for the removal of an encroachment on a public way was passed by a Sub-Divisional Magistrate on 9th May 1933. Chhedi Lal who was served with a notice of this order appeared before the Magistrate under Section 139-A, Criminal P.C. and said that he had not committed any encroachment on the public way and produced a copy of the remarks of the medical officer of health dated 3rd February 1938. The remarks are as follows:
I have seen the site. As I doubted about encroachment I had the old foundation dug. Recommended.
2. It is obvious from this note that the medical officer of health was of the opinion that there was no encroachment. It has been pointed out in a number of cases by this Court that a Magistrate under Ch. 10, Criminal P.C. makes only a summary enquiry into the matter in dispute and does not determine any question of title and indeed such a determination is to be deprecated. All that he has got to see under Section 139-A(2), Criminal P.C., is whether there is any reliable evidence in support of the denial of the person against whom the notice has been issued or whether his denial is only frivolous and if there is any reliable evidence in support of such denial the Magistrate shall stay the proceedings until a matter of existence of such right has been decided by a competent Civil Court, but if he finds that there is no such reliable evidence he shall proceed as laid down in Section 137 or Section 138 as the case may require. In the present case the Magistrate did not follow the procedure as laid down in Section 137 or Section 138, Criminal P.C. but made his order of 9th May 1938 absolute on 20th May 1938. The learned Sessions Judge has in his referring order pointed out
that the title set up by the applicant was certainly based on reliable evidence and was not merely a bogus one
under the circumstances the learned Magistrate ought to have stayed the proceedings pending the decision of the matter by a Civil Court of competent jurisdiction.
3. I agree with the view of the learned Judge and I think that in the present case there was some reliable evidence in support of the applicant's denial and the Magistrate ought to have stayed the proceedings and that in any event the Magistrate has erred in making his order absolute without complying with the procedure laid down in Section 137 or Section 138, Criminal P.C.
4. In support of the reference Mr. Saila Nath Mukerji has argued on behalf of the applicant that the recommendation of the learned Sessions Judge ought to be accepted in full by this Court whereas learned Counsel appearing for the Crown has contended that the Magistrate should only be directed to proceed under Section 137, Criminal P.C. After having considered the case from all points and after paying due regard to the opinion of the learned Sessions Judge that the evidence produced by the applicant was not a bogus one but was, what may be termed, 'reliable evidence' the proper order for this Court to pass is an order quashing the proceedings. It is not possible to say, as contended by the Crown, that the objection of the applicant is wholly frivolous or that there is no evidence is support of his denial. The medical officer is a responsible officer and although it may not have been within his exclusive jurisdiction to consider the question of encroachment and dig the foundation and come to the conclusion that the construction ought to be recommended, it is not for me to say whether this evidence ought to be accepted in proof of the applicant's claim but in view of what the learned Sessions Judge says I cannot say that the evidence ought to have been rejected under Section 139-A, Criminal P.C. For the reasons given above I accept the recommendation of the learned Sessions Judge and quash the order of the learned Magistrate dated 20th May 1938 and stay all further proceedings pending the decision of the mutter by a competent Civil Court. Lot the record be returned.