Pandrang Row, J.
1. In this case, the Sub-Divisional First Class Magistrate of Sankari has passed an order under Section 137 of the Criminal Procedure Code making absolute the preliminary order made by him under Section 133 of that Code. The order relates to the burial of a corpse in a certain place which was alleged by the petitioners in the case and also by the President of the District Board to be a public place. The respondents before the Magistrate who are the petitioners in this Court appeared before the Magistrate in response to the preliminary order which directed them to remove the corpse from the place in question and they contended that the place of burial was in their private possession and also that the burial did not cause annoyance to anybody. In these circumstances, the obvious procedure to follow was that prescribed in Section 139-A of the Code, which was introduced by the amending Act of 1923. Unfortunately, this section seems to have escaped the notice of the learned Magistrate who instead of proceeding thereunder and deciding whether the evidence put before him by the respondents before him supporting the denial of the existence of any public right in the place in question was reliable, took evidence on both sides beginning with the evidence adduced on the side of the petitioners before him, and after considering the evidence on both sides, he came to the conclusion that the place of burial was definitely a public place. He puts it in paragraph 4 of his order as follows:
On considering the evidence of the petitioners and the counter-petitioners, I have no hesitation in concluding that the alleged place of burial is definitely a public one. Though the counter-petitioners have examined a number of witnesses, they are persons of no worth comparatively while the petitioners' witnesses include the Health Inspector, two Village Officers and Oor Goundan of the village. They have all given evidence to the effect that the alleged place of burial is a public one.... The evidence of the counter-petitioners fails to refute this allegation. It appears to be true that Rama Goundan the deceased father of the counter-petitioners installed the Pillayar in the Pillayar temple near the place of burial about twenty years ago.... The counter-petitioners allege that they have been storing manure and tying cattle on the site in question.
2. But the learned Magistrate refused to infer any right of possession from this evidence because village porombokes are generally made use of by the ryots for such purposes. As regards the evidence adduced about the planting of trees in the site by the respondents before him, he observed that it must have been recent. There is no doubt that the Magistrate has come to the conclusion that the place is a public one only after weighing the evidence adduced before him by both sides. This is not permitted by Chapter X as amended by the Act of 1923. This point has been stressed in several decisions of the High Courts. It is enough to refer to them and to give extracts from one or two of them. These decisions are reported in, Raghunandan v.
3. Shew Nandan (1932) A.L.J. 339, Chunni v. Emperor (1938) A.L.J. 1013, Hamid Ali v. Emperor (1930) 32 Cr.L.J. 250, Ude Singh v. Mohammada I.L.R.(1928) 10 Lah. 151, Thakur Sao v. Abdul Aziz I.L.R.(1925) 4 Pat. 783 and Kusha Mandal v. President, Gopalnagar Union Board I.L.R.(1934) 61 Cal. 390. The last two are Bench decisions. In Ude Singh v. Mohammada I.L.R. (1928) 101 Lah. 151, Addison, J., held that the Magistrate can proceed under Section 137 only if he finds there is no reliable evidence in support of the denial of the public right in the place in question, and that where there is any reliable evidence, the Magistrate must stay proceedings. He observed also:
It is not the duty of the Magistrate to come to a finding whether the evidence is sufficient in his opinion to support the case of the respondents; all that he has to see is whether there is any reliable evidence in support of the denial of any public right....
4. If there is, the Magistrate must 'stay his hands till the matter has been decided by a competent Civil Court'. Similar observations are to be found in the other decisions. As per Mullick, J., in Thakur Sao v. Abdul Aziz (1925) I.L.R. 4 Pat. 783:
The law requires first of all that the party shall appear before the Magistrate and deny the existence of the public right in question. Secondly, that he shall produce some reliable evidence, and thirdly, that such evidence shall be legal evidence and shall support the denial. If these three conditions are satisfied, then the Magistrate's jurisdiction ceases to exist. See bottom of page 786 and the beginning of page 787.
5. The learned Judges who decided the case reported in Kusha Mandal v. President, Gopalnagar, Union Board I.L.R.(1934) 61 Cal. 390, point to the alteration of the law which was introduced by Section 139-A of the Code, the law before the amendment being that the Magistrate had to decide whether the claim of the second party was bona fide or not, or in other words, whether the claim is a mere pretence or not Before that amendment, no doubt, it was permissible and proper for the Magistrate to take evidence on both sides. But now what is to be decided is whether the denial of the public right by the second party is supported by any reliable evidence and if there is any reliable evidence in support of such denial, the Magistrate has no option but to stay his hands and to refer the parties who moved the Magistrate to take action to go to the Civil Court. It cannot be said that there was no reliable evidence in support of the denial made by the petitioners nor does the Magistrate say there is no reliable evidence. As a matter of fact, the learned Magistrate appears to have lost sight of Section 139-A of the Code, and proceeded to conduct an enquiry-straightaway under Section 137, Criminal Procedure Code. In doing so, he has assumed a jurisdiction which he did not possess and would not possess unless he had found beforehand that there was no reliable evidence to support the denial of the public right by the petitioners, that is to say, by the respondents before him.
6. The order of the Magistrate is totally without jurisdiction and it is therefore set aside. In view of the fact that there is some reliable evidence in this case in support of the denial, it is not open to the Magistrate to take further action in the same matter under Chapter X of the Code of Criminal Procedure.