1. This is a criminal reference out of a proceeding under Chap. 10, Criminal P. C., (Public Nuisances), which is going on in the Court of a Magistrate. The proceeding began with a report of the police more than a year ago, on 22nd August 1932, and on that the Magistrate issued notices under Section 133, Criminal P. C., against Kalika and others for having constructed a dam across a public channel. The applicants Kalika and others asserted that this was a private channel. Evidence was produced before the Magistrate under Section 139-A on this point as to whether the channel was public or private, and the Magistrate found that there was no reliable evidence in support of such denial. If he bad found that there was any reliable evidence, his duty would have been under Section 139-A(2) to stay the proceedings until the matter of the existence of the right had been decided by a competent civil Court. On finding that there was no such reliable evidence his duty was to proceed under Section 137, Criminal P. C. The correctness of the Magistrate's order under Section 139-A(2) was taken before this Court in revision, and on 7th March 1933, a learned Single Judge of this Court decided as follows:
There is nothing in this application in revision. The Magistrate and the Sessions Judge have both come to the conclusion under Section 139-A that there was no reliable evidence produced by the zamindars of Shahjani. I see no reason whatever for interfering with this decision.
2. The procedure therefore under Section 137, Criminal P. C., should have taken place, and the Magistrate should have made a final order under that section. But an application was made to the Magistrate on 28th July 1933, asking that he should stay his proceedings till the decision of the civil suit which the applicants had filed in the Court of the Subordinate Judge at Mirzapur after the order of this Court in revision of 7th March 1933. This suit is for a declaration that the channel in question is not a public natural channel and that the dam is an old one and is not an obstruction in the channel. The Magistrate refused the application and the learned Sessions Judge considered that the Magistrate was wrong and has referred the question of the stay of the criminal proceedings for orders. The Sessions Judge states that it is undesirable that the same dispute should be fought out in the criminal Court as well as in the civil Court and that two Courts might differ. Learned Counsel for applicants has based his argument partly on certain observations contained at the end of the judgment of the learned single Judge of this Court on 7th March 1933, to the effect that it is open to the zamindars to proceed through the civil Court for the decision of the question of public right. The learned Single Judge of this Court did not say that a decision of the question of public right would make the order of the Magistrate invalid if an absolute order is passed under Section 137, Criminal P. C. Learned Counsel has been unable to satisfy me that a decree of the civil Court would have such an effect, and there is no such provision in Chap. 10, Criminal P. C. Learned Counsel admits that he has no ruling to this effect. His argument is largely one of expediency. It is a matter no doubt for the discretion of this Court as to whether the criminal proceedings should be stayed or not in the present proceeding. In coming to a decision on this point I have regard to the provisions of Section 139-A (2), in which the Criminal Procedure Code has made a provision for the stay of proceedings under Chap. 10, and a certain condition has been attached to the stay of those criminal proceedings. That condition is that the Magistrate must find that there is reliable evidence in support of the denial of the existence of a public right. In the present case the Magistrate has found that there is no reliable evidence in support of this denial. This Court is now asked to grant a stay of the criminal proceedings and to ignore the criterion which has been laid down by the Criminal Procedure Code. Where there is a definite provision for a certain course of procedure laid down in a Code and that procedure requires a definite condition precedent before it is put in force, I consider that it is not a function of this Court to ignore the existence of the condition precedent and to adopt the procedure as if that provision did not exist. A further point to be noted in the present case is that the principle of the stay of suits laid down in Section 10, Civil P. C., is that a stay order should be granted in regard to a suit instituted subsequently where there is a previously instituted suit between the same parties on the same subject matter. Now if this principle were applied to the present case, as the criminal proceeding was first instituted, the proceeding to be stayed would not be the criminal proceeding but it would be the civil suit. It is true that the stay which is asked for in the present case does not come under Section 10, Civil P. C., because the stay is asked in a criminal proceeding, but as the stay is asked because of a civil suit, I consider that the principle of that section may well be applied. Learned Counsel contends that if there is a final order of the Magistrate under Section 137, and subsequently if the civil Court passes a decree in favour of his clients and the civil Court holds that the channel is not a public channel and its obstruction does not amount to a public nuisance, then in some way the order of the Magistrate will be rendered invalid. There is no provision in Chap. 10 to that effect. On the contrary Section 140, Criminal P. C., lays down that where there is an order which has been made absolute under Section 137, then that order can be enforced in case of disobedience by the penalty provided in Section 188, I. P. C. The Criminal Procedure Code has endowed a Magistrate with jurisdiction to decide this question under Chap. 10 in regard to public nuisance, and the Criminal Procedure Code has provided for the enforcement of that decision by the criminal Courts. It may be that the civil Court will come to a contrary decision in regard to the question as to whether the nuisance was a public nuisance or not, but I do not see how the decree of the civil Court is going to affect the powers of the Magistrate to enforce his order if he makes an absolute order under Section 137, Criminal P. C. Under these circumstances I refuse this application for stay of the criminal proceedings. Let the record be returned.