M. Wahajuddin, J.
1. The applicant has come forward with a prayer t0 quash the proceedings in Case No. 1 of 1979, Siya Ram and others v. Ravi Shanker, under Section 133. Cr. P.C. pending in the Court of Sub-Divisional Magistrate, Orai,
2. It would appear that proceedings were initiated on the application of opposite parties l to 4, maintaining that the land involved is a drain and the applicant has obstructed the same. The applicant filed a written statement. That written statement has been annexed with the counter-affidavit. In para 15 of the affidavit, filed in support of the application, it was alleged that the Magistrate without having any resort to procedure contemplated under Section 137, Cr. P.C., started enquiry under Section 138, Cr. P.C. In reply to the same, as per para 15 of the counter-affidavit, it was stated that since there was no denial of existence of public right by the applicant, the learned Magistrate was right and justified in straightway proceeding under Section 138, Cr. P.C., ignoring the procedure laid down under Section 137, Cr. P.C. Thus, it is a common ground that the procedure laid down under Section 137, Cr. P.C. has been bye-passed and the Magistrate has straightway proceeded under Section 138, Cr. P.C.
3. It is submitted that Section 137, Criminal Procedure Code is not attracted, as actually there is no denial of public right. In that connection the perusal of para 10 of the written statement before the Magistrate annexed herewith the counter-affidavit is important. It has been expressly stated therein that the disputed land ceased to be the property of Gaon Sabha from 25-1-1978 and it is the personal property of the present applicant. This clearly amounts to an assertion that the land is not a public land and that it is the land of the applicant. The plea may have substance or may be totally frivolous and without substance. But once such a Plea has been raised, the provision of Section 137, Criminal Procedure Code is attracted. It is, of course, open to the Magistrate not to stay the proceedings holding that there is no reliable evidence in support of such denial. But that is a matter which concerns the Magistrate. This Court will not enter into the bona fide or otherwise of the claim. It has to simply consider whether there is a denial and so far as that aspect is concerned. I hold that a denial has been made as to attract Section 137, Criminal procedure Code.
4. It was next urged that in any case the matter is a mere technicality and this Court would not interfere. Reliance in support of such argument was placed by the learned Counsel for the opposite parties upon the case of Rasamayee v. Nakul, 1972 Cri LJ 936 (Assam and Nagaland). I fell that actually if that view is adopted, it would nullify, the provision of Section 137, Criminal Procedure Code. The Court cannot question the wisdom of legislature, when any Provision has expressly been laid down also providing for stay of proceedings and inviting decisions by Civil Court in certain situation, such procedure has got to be followed. Similar view was taken in the case of S. P. Trivedi v. State of U. P. : AIR1954All203 concerning old Section 139-A, Cr. P.C. corresponding to present Section 137, Cr. P.C. Reliance was also placed by the Counsel for the opposite parties upon the case of Bansidhar Marwari v. P.W. D., Bihar (AIR 1943 Pat 3) : (1942-43 Cri LJ 923) relying upon the earlier Patna view. In that case there was an omission upon the part of the Magistrate to put a question under Section 139-A, old Cr. P.C., while in the position, the Magistrate must observe the procedure laid down under Section 137(2), Cr. P.C. instead of by passing it and proceeding under Section 138. Cr. P.C. straightway.
5. In the result, the application is partly allowed and the proceeding under Section 138, Cr. P.C. is quashed and it is directed that the Magistrate must have a resort to Section 137, Cr p. C. first as to record an order under Section 137(2), Cr. P.C.. and only then, if he finds that there is no reliable evidence in support, he can proceed under Section 138, Cr. P.C. Obviously, it is for the Magistrate to examine the evidence for his view under Section 137(2), Cr. p. C. The prayer for quashing the entire proceeding is however rejected.