1. The present application is made by one Mt. Ram Kali for the revision of an order passed by a First Class Magistrate of Bareilly in a case under Section 133, Criminal P.C. Briefly the facts are that Mt. Ram Kali had put up some turnstiles on a plot of land which admittedly is her property and thus obstructed a route or path which passes over her land to a temple known as Tapeshwarnath temple. An application under-S.133, Criminal P.C., was made to the Magistrate by the managing committee of the temple and a number of residents of the locality consisting mostly of railway employees living in the railway quarters in that neighbourhood and the procedure adopted by the Magistrate was as follows:
The application having been made on 13th January 1932, he inspected the locality on 15th January, and apparently had some conversation with the parties. On 19th February certain documents were filed on behalf of Mt. Ram Kali. A notice under Section 133, Criminal P.C., was issued to her on 26th February, and 4th March was the date fixed for objections, or to be more accurate, for appearance under Clause (b) of Section 135. A written statement was filed on behalf of Mt. Ram Kali on 21st March (an adjournment from the 4th having been obtained) and the Magistrate then fixed another date, 12th April for the hearing of evidence. On that date neither evidence nor arguments were heard, but on a subsequent date, namely, on the 10th June, the Magistrate passed an order which is now the subject of this revision going into the merits of the case, that is to say, he referred to the documents filed by either party and to his local inspection and concluding that as the path or road which was the subject of dispute was the only regular approach to the temple for the large number of railway employees living in the quarters, it was but just and proper that the order to remove the turnstiles should be made absolute. An application for revision to the learned Sessions Judge was rejected.
2. After the original order or notice under Section 133 had been issued to Mt. Ram Kali it was necessary for her to appear under Clause (b) of Section 135 and it is not denied that appearance was made on her behalf. The next step which the Magistrate had to take was that set forth in Section 139-A, Criminal P.C. He had to question Mt. Ram Kali or her representative as to whether she denied the existence of the public way, and if she did, he had to inquire into the matter, and if he found that there was any re-liable evidence in support of her denial he was bound to stay the proceedings until the question should be decided by a competent civil Court. If, on the other hand, he found that there was no reliable evidence in support of her denial he had to proceed under Section 137, Criminal P.C., and pass orders accordingly. The procedure of the Magistrate in the case was not according to law, but the Sessions Judge seems' to have considered that it was sufficiently correct to justify the order passed.
3. Now it is beyond controversy that the owner of land has a right to put up turnstile on that Land, and the Magistrate has no power to order him to remove the turnstiles unless he has by so doing obstructed a public way. If it is claimed that there is a public right of way over the land of any person and there is no judicial pronouncement on the point, it will in most cases be conceded that the owner of the land has, at any rate, an arguable case in a civil Court. I do not suggest that the jurisdiction of the criminal Court is ousted by the fact that the person proceeded against is the owner of the land, but, at any rate; the fact of owners ship is a very solid fact, and in the. majority of cases will undoubtedly provide 'realible evidence' within the meaning of Clause (2) to Section 139-A in the absence of very cogent evidence, on the other side. In the present case there was no judicial pronouncement of the existence of a right of way, and the only evidence that the Magistrate had, apart from his own observations which were not reduced to writing, was a map and judgment of the year 1908 relating to some land acquisition proceedings in which the existence of a right of way was not one of the matters in issue, and the. land concerned, was not the same as that now in dispute. The admissibility or at any rate the value of this evidence in the present proceedings has been challenged, and might well prove to be a matter of some controversy. The map and the judgment are however part of the judgment on which the Magistrate has relied.
4. The main objection that has been taken to the proceedings of the Magistrate is that he did not hold any proceedings under Section 139-A at all, but that leaving out that most necessary step he proceeded to adjudicate on. the matter finally under Section 137, and by so doing improperly arrogated to himself the 'functions of a civil Court. I have been asked, on the other side, to hold that the proceedings of the Magistrate were really proceedings under Section 139-A, and that if there was any irregularity it can be cured under Section 537, Criminal P.C., on the ground that there has been no prejudice to the present applicant. In this connection I have been referred to a recent decision by a Full Bench of this, Court, namely, the case of Kapoor Ckand v. Suraj Prasad : AIR1933All264 . I can dispose of this last point very shorthly. The decision of the Full Bench is certainly an authority for holding that when the Magistrate has jurisdiction which arises from the fact that he has received certain information and that he is satisfied as to the truth of that information an irregularity in his proceedings need not vitiate them altogether, provided that the accused is not prejudiced. Assuming in the present case that the Magistrate had jurisdiction to initiate proceedings, I am satisfied that if he was betrayed by an error in procedure into coming to a decision which could only be pronounced properly by a civil Court, the result undoubtedly did prejudice the present applicant, for the result is an order compelling the applicant to remove turnstiles set up on her own land without any authoritative decision that she has been obstructing a public way.
5. I think that the other contention made on behalf of the opposite party, namely, that the proceedings of the Magistrate were really proceedings under Section 139-A, is also fallacious. The order of 10th June 1932 appears to me to be undoubtedly an attempt to solve the issues raised in the case after a review of the evidence produced on both sides. It does not merely provide an answer to the question of whether Mt. Ram. Kali had reliable evidence on which to base her denial of the existence of a public way. As I have already said, her evidence was her title deed, in which there is no mention of the existence of the right of way. The evidence, on the other side, has been weighed against this and the question has been decided apparently with a view to the equities of the case as affecting those members of the railway community who make use of the temple. There was however a definite legal question for decision, and that was whether a public right of way existed over this land. There is no definite decision on this point, and the order of the Magistrate is therefore ultra vires. I therefore allow the application, and set aside the order of the Magistrate. It is not necessary for me to pass any further order because it will be necessary for any person who wishes to have a pronouncement on the existence of a public right of way to obtain a decision in the civil County