1. We are of opinion that this Rule should be made absolute. It appears that the order which the learned Deputy Magistrate made on 5th July 1933 was an order intended to be made Under Section 139-A, Sub-section (2) of the Code. This provision of the law has been expressly referred to by the learned Magistrate in his said order. Now, what happened was that on notice being served upon the petitioners, they denied that the alleged pathway was a public one and produced some evidence in support of such denial and the learned Magistrate, referring to that evidence and also to the evidence of the party who had moved the Court for proceedings Under Section 133 of the Code, came to the conclusion that it was not sufficiently established that there was a public pathway with regard to which proceedings Under Section 133 of the Code were necessary. He then passed an order in the following terms:
The witnesses of the second party stated that there was no such public path there and that the villagers of Char Khukshia use another U.B. road to the west. The alleged path was not recorded in the settlement map. In such case I consider it desirable to stay proceedings Under Section 139-A(2), Criminal P.C., and refer the parties to the civil Court for the decision of the matter. Accordingly I stay proceedings until the matter of existence of any such public right is decided by the civil Court. The second party should move the civil Court for the assertion of his claim that there is no such public pathway over their lands.
2. The petitioners who were the second party in the proceedings did not move the civil Court within a reasonable time, and upon that the Magistrate, at the instance of the first party, took up the proceedings and began to proceed with them. The learned Magistrate in his explanation in answer to this Rule has sought to justify his action, stating thus:
I found that the claim of the second party might not be a mere pretence and that the second party might be given a chance as enjoined Under Section 189-A(2), Criminal P.C., to establish their claim in the civil Court.
3. The Sessions Judge has declined to interfere holding that the course adopted by the Magistrate is quite in accord with the decision of this Court in Manipur Dey v. Bidhubhusan AIR 1915 Cal 168 and that although that decision was under the law as it stood prior to the amendments of 1923, the law in this respect has undergone no alteration by the said amendments. We are of the opinion that the view taken by the Courts below is not right. The law was in fact altered by the introduction of Section 139-A of the Code and the question whether the claim of the second party is bona fide or not, or in other words is a mere pretence or not, a question which under the case law prior to the amendments was of vital importance, is no longer so. What has now to be considered is very different from what was necessary to be determined then. Under Section 139-A what has to be seen is whether the denial of public right by the second party is supported by any reliable evidence. If it is, the Magistrate has to stay his hand until the matter of the existence of such right has been decided by a competent civil Court. Under the law as it is at present, it is the party moving for proceedings Under Section 133 or somebody interested in asserting such right, who has got to go to the civil Court to establish its' existence. The Magistrate's order directing the second party to go to the civil Court is not one which can any longer be made under the law.
4. What we have to see therefore is whether there was reliable evidence in support of the denial. We are satisfied upon what the Magistrate himself has said that there was such evidence. In our judgment therefore the Magistrate should have stayed his hand altogether until the right of the public which was set up on behalf of the first party was established in a competent civil Court. The Rule is accordingly made absolute. All proceedings taken subsequent to the order of 5th July 1933 are set aside, and it is further ordered that the said order be regarded as one passed Under Section 139-A(2) of the Code.