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Rupan and ors. Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1976CriLJ502
AppellantRupan and ors.
RespondentState of Uttar Pradesh
Excerpt:
- - in case the magistrate finds that the evidence in support of the denial is reliable, proceedings on the basis of the notice issued under section 133 cr. only if he comes to the conclusion that the objector's evidence in support of the denial regarding the non-existence of public right in the land was not reliable......applicants appeared and denied that the land in dispute was a public way. after that denial the learned magistrate should have proceeded to make enquiry contemplated by section 139-a (2), criminal p.c. from the record it appears that the learned magistrate did not comply with this provision but proceeded under section 137 thinking that the dispute inter se the parties was open to decision. he accordingly proceeded to take evidence of the parties and finally came to the conclusion that the land in dispute was a public way and the same had been encroached upon bv the applicants. he accordingly made the order absolute under section 137, criminal p.c. the revision filed by the objector was dismissed by the sessions judge.2. section 139-a, criminal p.c. (1898) corresponding to section 137.....
Judgment:
ORDER

Hari Swarup, J.

1. This revision has been filed against the order of the learned Magistrate issued under Section 137 of the Criminal P.C. 1898. Notice under Section 133, Criminal P.C. was given to the applicants requiring them to remove the alleged obstruction from the alleged public way. The applicants appeared and denied that the land in dispute was a public way. After that denial the learned Magistrate should have proceeded to make enquiry contemplated by Section 139-A (2), Criminal P.C. From the record it appears that the learned Magistrate did not comply with this provision but proceeded under Section 137 thinking that the dispute inter se the parties was open to decision. He accordingly proceeded to take evidence of the parties and finally came to the conclusion that the land in dispute was a public way and the same had been encroached upon bv the applicants. He accordingly made the order absolute under Section 137, Criminal P.C. The revision filed by the objector was dismissed by the Sessions Judge.

2. Section 139-A, Criminal P.C. (1898) corresponding to Section 137 of the new Code provides that when an order is made under Section 133 and the party appears and on questioning by the Magistrate denies the existence of any public right in respect of the alleged way. the Magistrate shall proceed to make enquiry in accordance with Sub-section (2) of Section 139-A before proceeding under Section 137. Criminal P.C.

3. Sub-section (2) of Section 139-A requires the consideration of the evidence of the objector in support of his denial regarding the existence of public right in respect of the way Under Section 139-A (2) the reliability of the objector's evidence has to be judged. It has not to be considered in comparison with the evidence of the other side. The distinction between Section 137 and 139-A (2) is that under Section 137 evidence of parties is weighed and compared, while under Sub-section (21 of Section 139-A only the reliability of the objector's evidence is tested. In case the Magistrate finds that the evidence in support of the denial is reliable, proceedings on the basis of the notice issued under Section 133 Cr.P.C. are stayed till the matter has been decided by the competent civil court. The Magistrate proceeds to make enquiry under Section 137, Cri. P.C. only if he comes to the conclusion that the objector's evidence in support of the denial regarding the non-existence of public right in the land was not reliable. Learned Magistrate has obviously not followed the procedure, His order cannot accordingly, be sustained.

4. In the result, the revision is allowed, the order passed by the learned Magistrate under Section 137, Criminal P.C. is quashed, and he is directed to proceed from the stage of enquiry to test the reliability of the evidensce of the objector under Section 139-A. (2) of the Code of 'Criminal Procedure.


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