1. This is an application in revision by three persons against an order passed by a Magistrate of First Class of Ballia under Section 133, Criminal P.C.
2. A complaint was filed in the learned Magistrate's Court alleging that the applicants had obstructed a public path which lay to the south of the complainant's house, and on 24-8-1945, the learned Magistrate issued a conditional order under Section 133, Criminal P.C., directing the applicants to remove the obstruction within one month or, if they object so to do, to show cause on 19-9-1945, against that order. Oh that date the applicants appeared before the learned Magistrate, and on being questioned by him under Section 189A of the Code they denied the existence of any public right in respect of the path in question. At the same time they filed a written statement in which they asserted, inter alia, that the public path lay to the north, and not to the south, of the complainant's house. A few days later they applied under Section 135 of the Code for the appointment of a jury to consider the propriety of the Magistrate's order. No action appears to have been taken on this application until 20-12-1945, when the learned Magistrate quite properly said that the question of the appointment of a jury was premature as the inquiry referred to in Section 139A had first to be held. This inquiry was not commenced until 14-3-1946, and seems not to have been completed until 23-5-1946, when the learned Magistrate delivered an order the validity of which is the real issue in this case. It is apparent from this order that at the inquiry the learned Magistrate examined witnesses produced both by the complainant and by the applicants and was referred to the judgment in a civil suit between the same parties. The conclusion reached by the learned Magistrate was that the witnesses produced by the applicants were not worthy of belief, and that the path in question lying to the south of the complainant's house was a public way. He then directed that as the applicants had already applied for the appointment of a jury the case, should proceed in accordance with the provisions of Section 138 of the Code. On 10-6-1946, the jury was appointed and they were directed to record their finding within one month. They not only failed to do so but on 10th July asked to be allowed to resign. As a consequence of this the learned Magistrate On 12-7-1946, made an order under Section 141 of the Code directing the applicants to remove the obstruction to the way within two months.
3. Mr. K.B. Aathana in his very careful argument on behalf of the applicants has taken two objections to the procedure adopted by the learned Magistrate. He says, first, that the Magistrate ought, in holding the inquiry required by Section 139A, to have heard only the statements made by the witnesses for the applicants; that he erred in hearing witnesses produced by the complainant, indeed in permitting the applicants' witnesses to be cross-examined and, secondly, that the fact that, as a result of his inquiry, the Magistrate recorded a finding that the path in question was a public right of way vitiated his whole order.
4. Now the object of the inquiry which the Magistrate must hold under Section 139A(1) is for the purpose of ascertaining whether there is any reliable evidence in support of the denial of the existence of any public right in the way in question. Nothing is laid down in the Code as to the form which that enquiry should take, and no restrictions are imposed upon the discretion of the Magistrate as to how he shall conduct the enquiry except such as can be inferred from the purpose for which the enquiry is intended. His duty is to determine not merely whether there is some evidence in support of the denial but whether such evidence is reliable-that is to say evidence which he has no reason to think is false-and he may therefore allow the witnesses called in support of the denial to be cross-examined : Mt. Chunni v. Emperor : AIR1938All653 . The purpose of the enquiry is however such that it is not necessary, and therefore I think not intended, that the Magistrate should take the evidence of witnesses on behalf of the complainant, although there is nothing to prevent, should circumstances warrant such a course, the Magistrate himself calling a witness. This was also the view taken by a Bench of the Calcutta High Court in Kishorimohan Pramanik v. Krishnabihari Basak ('31) 58 Cal. 461 in which it was said:
The Magistrate is to find out whether there is reliable evidence in support of the second 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 the second party in support of such denial. The enquiry being of a summary character it is not intended that the first party should be required to adduce evidence to contradict the case sought to be made out by the second party. But it must be understood that there is nothing in Section 139A which case exclude the exercise of the Court's power under Section 540, Criminal P.C.
5. Now what has the learned Magistrate done in this case? He has held an enquiry, at which he has examined three witnesses tendered by the present applicants and two by the complainant; and he has taken into consideration a judgment of a civil Court between the same parties relating to this pathway. I think it was unnecessary for him to have heard evidence on behalf of the complainant, but I am not prepared to say that the fact that because he has done so he must be held, irrespective of the circumstances, to have acted contrary to law. Nor am I prepared to say that he was wrong in looking at the judgment of the civil Court if he had reason to think it would assist him in arriving at a conclusion as to the reliability of the evidence in support of the denial of the public right. Suppose for example that the question of the existence of a public right in respect of a particular road has been finally decided by a civil Court; can it be said that at an enquiry subsequently held under Section 139A arising out of proceedings instituted under Section 133 for the removal of an obstruction to that road the Magistrate must, refrain from perusing the judgment of the civil Court? I find it difficult to think that such can be the law.
6. I have, with the assistance of counsel, examined the judgment to which the learned Magistrate in this case has referred. The suit was one in which the applicants sought to restrain the complainant from using the path which the complainant now says the applicants have obstructed; and the Court dismissed the suit holding that the path was not on land the property of the applicants. The Court did not hold, nor was it competent for it to do so, that the path was a public way; but it is clear from the judgment that in the vicinity of the complainant's house there is only one path, which lies to the south. In the light of this judgment there was, in my view, ample material upon which the learned Magistrate could come to the conclusion that the evidence of the applicants' witnesses, who said that the path was to the north of the complainant's house, was not reliable.
7. But then it is said that because the learned Magistrate has gone outside his province and found as a fact that there exists a public way to the south of the complainant's house his enquiry is a nullity. Now what the learned Magistrate has one is to record two findings, first that there is no reliable evidence in support of the denial of the public right and, secondly, that because there is no such evidence, the public right exists. In arriving at this second conclusion the learned Magistrate has clearly ^misdirected himself - one indeed suspects that he had not got Section 139A before him when he wrote his order but I am by no means satisfied that as a consequence of such misdirection this Court must, in revision, hold that the whole enquiry was void and set aside the subsequent order under Section 141.
8. Reliance was placed for the applicants on the case in Sadasheo Chintaman v. Chintaman Khushalrao ('45) I.L.R. (1945) Nag. 461. But in that case the question did not arise, and the remarks of the learned Judge on the effect of the Magistrate failing to comply with the provisions of Sub-section (2) of Section 139A were obiter. If the learned Judge intended to mean that, in a case in which the circumstances are such as we have to consider here, the subsequent proceedings of the Magistrate must necessarily be a nullity, I am, with the greatest respect, unable to agree with him. I am unable to accede to the view that although a Magistrate has found that there is an absence of reliable evidence in support of 'the existence of a public right, the fact that he has, admittedly wrongly, further held that the public right exists, necessarily results, irrespective of the circumstances, in his order being a nullity.
9. There is a further consideration. If the 'Court in the present case holds that the Magistrate's order is a nullity, what will be the consequence? The Court must either stay further proceedings pending a decision by a competent civil Court or direct the Magistrate to hold another enquiry. The Court would however only be justified in staying the proceedings if it were satisfied that there was reliable evidence in support of the denial of the existence of the right, but on this point I am not satisfied; and to direct a further enquiry would, I think, in the circumstances, be a waste of time.
10. In the circumstances, therefore, I decline to interfere, and the application is dismissed.