N.K. Das, J.
1. This revision is directed against an order passed under Section 133, Cr. P.C. The members of the second party are petitioners. The case of the first party is that he and the members of the second party have got residential houses in the bustee. The main village lane runs from east to west adjacent to that plot. There is a bi-lane nearby. The cowshed and house of the petitioner lie to the west of the bi-lane. Due to land dispute between the parties, the members of the second party have erected a mud-wall by the side of the cowshed of the first party which is a public passage. As such, the people of the locality as well as the cattle of the first party are obstructed from using the bi-lane and this has resulted in hardship to a great extent. Accordingly, the first party claims that the members of the second party have unlawfully obstructed the public road by putting the mud-wall over it.
The members of the second party have denied the existence of any public road or public right over any road and contend that the mud-wall in question has been erected on their own land which is set apart as a lane for their own use, They have purchased the said land from the previous owner by a registered sale-deed dated 8-7-1968. They have also denied the plea of passage of the cattle of the first party through that land and the alleged public right over the same.
2. The learned Magistrate while holding inquiry exercising his jurisdiction under Section 139-A of the Cr. P.C. (old) has held that he is inclined to hold that the denial of public way or public right is a mere pretence and, therefore, he made the preliminary order absolute,
3. In cases falling under Section 139-A, Cr. P.C. (old), the Magistrate has to hold an inquiry as laid down therein. He has to direct the party against whom the provisional order has been made to appear before him and deny the existence of the public right in question. Such party shall also produce some 'reliable evidence' and that such evidence shall be legal evidence which will support his denial. Once these conditions are satisfied, the Magistrate loses jurisdiction and is bound to refer the matter to the Civil Court for adjudication. He has no jurisdiction to weigh the evidence and decide on which side the balance tilts. The inquiry Under Section 139-A is in the nature of an ex parte summary inquiry, and what the Magistrate is to see is whether there is a prima facie reliable evidence in support of the denial and not that the non-existence of the public right should be affirmatively proved, It is not the duty of the Magistrate to take evidence of both the sides and then to judge if the party against whom the order has been made has succeeded in establishing the non-existence of the public right. If the evidence adduced by the party against whom the order is made is legal and reliable, there is an end of the matter and the Magistrate has to stay his hands and refer the parties to the Civil Court. It is not the duty of the Magistrate to decide the question of title. His duty is merely to see that any claim to a piece of land alleged to be a public place or a public way is not frivolous and is bona fide. The question of title is not intended to be decided in a summary proceeding by a Magistrate in a criminal case. 'Reliable evidence' as envisaged under Section 139-A, Cr. P.C. means evidence on which it is possible for the Court to place reliance. It does not mean that the evidence is such that it definitely establishes title to the land. If that is the meaning of the term, it will be unnecessary in any case to refer the matter to the Civil Court. In other words, reliable evidence is the evidence of reliable persons and all that a Magistrate has to satisfy is that the evidence produced is not false. What is meant by the section is not that the Magistrate should weigh the evidence produced by both the parties and then come to the conclusion which is more reliable or should be referred. The object of Section 139-A is that if the denial of the public pathway involves a bona fide claim on the part of the persons denying the public right, the matter should be decided by a competent Civil Court and not by a Magistrate in a summary inquiry provided under Section 139-A. (See Jai Ram Singh v. Bhuley : AIR1963All27 ).
Considering the cases reported in Darsan Ram v. State : AIR1959Pat81 and Munshi Gope v. Ragho Prasad Singh 1972 BJLR 699, it has been held in Chandra Bhushan Prasad Singh v. Tungnath Missir 1974 BJLR 204, that an inquiry under Section 139-A of the Code is in the nature, of a summary ex parte inquiry and it is on the basis of the ex parte evidence adduced by the party denying the existence of the public right that the Magistrate must come to a conclusion whether or not there is any reliable evidence in denial of the public right. The very nature of the inquiry which the Magistrate has to hold indicates that if the party denying the existence of a public right has produced some reliable ex parte evidence in denial of the right, the Magistrate should stay his hands. The Magistrate is not permitted to allow the other party either to adduce evidence in rebuttal or to cross-examine the witnesses examined for the denial of the public right.
4. If the order of the learned Magistrate and the procedure followed by him while exercising his power under Section 139-A, Cr. P.C. are examined in the light of the above decisions, it would appear that the learned Magistrate has wrongly exercised his jurisdiction. He has not only recorded evidence, but has also allowed the other party to cross-examine the witnesses and after assessing the evidence he has held;
In the event I am inclined to hold that the O.P. could not deny beyond all reasonable doubt about the existence of the public way with public easement which he has obstructed, rather the documentary evidence, i.e., the village map finally published in the year 1970-71 goes to show that there is a recorded public way bearing Plot No. 1210/1943.
He has further held:
But the evidence of the O.P.Ws rather establishes the easement right of some persons and that too in the bustee side which is public property.
He has also held that the evidence of the O.P.Ws establishes the easement right of some persons and the O. P. could not establish reliably and more fully the non-existence of the public way. It would thus be seen that the Magistrate has not only weighed the evidence of the witnesses, but also relied on the map produced by the first party in arriving at his conclusion. Only because some persons have easementary right, he has come to the conclusion that it is a public road. He has made confusion between private easementary right and communal right and other such public rights. Accordingly, I hold that the decision of the learned Magistrate is not sustainable and he has wrongly exercised his jurisdiction in passing the order. The impugned order is, therefore, to be get aside.
5. In the result, the revision is allowed. The impugned order of the learned Magistrate is set aside. It appears that there was reliable evidence in support of denial of allegd public right. As such he is to stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court.