K.C. Sen, J.
1. This Rule is directed against the order of the learned Magistrate, passed by him on the 23rd November, 1964, in a proceeding under Section 133 of the Code of Criminal Procedure. The matter was gone into by him under Section 139-A of the Code of Criminal Procedure. He found that there was no reliable evidence in support of the denial as to the existence of the public right. He adjourned the case for hearing to the 6th January 1965.
2. The matter arose in the following circumstances. The petitioners Nos. 1 and 2 Atul Krishna Shahoo and Pratul Krishna Shahoo were served with a notice dated the 31st January 1961, drawing up a proceeding against them under Section 133 of the Code of Criminal Procedure. The notice purported to be in the following terms :--
' Whereas it has been made to appear to me from petition filed by the State at the in stance of Aurobinda Ghoshal J. L. R. O. Jayna gore. 24-Parganas, that you have raised y cross bund over the southern portion of Khal in Kishorimohanpore P.S. Jaynagore as portion of Khal in plot No. 2101 corresponding to new No. 2201 extending from the east and adding to the already existing Government embankment and encroaching upon the Government Khas lands in Plot No. 2050 corresponding to (sic)new No. 2126 to the east as fully described below with the ulterior motive of converting the said Khal into a fishery and cultivating saline pisiculture therein and that such obstruction still exists affecting the free flow of water, drainage,' movement of boats across the Khal; cultivation etc.
I do hereby draw up proceedings under Section 133 Cr P. C. directing you to remove the obstruction complained of by 1-3-1961 or to show cause before Shri N.B. Sen, Magistrate 1st Class, Alipore to have the order set aside or modified.
Given under my hand and seal of the court this the day of January, 1961.
Sub-divisional Magistrate, Alipore. '
3. In this notice it has been clearly stated that the petitioners have raised a cross bund over the southern portion of Khal in Kishori-mohanpore which bears the C. S. Dag No. 2101 and that the petitioners have also raised a cross bund over the offset land abutting Government embankment to the west bearing C. S. Survey Plot No. 2050 corresponding to revisional survey Plot No. 2126, with the obvious purpose of converting the said Khal into a fishery. On receipt of such notice the petitioners, accordingly, entered appearance before the learned Magistrate and denied the existence of public right in respect of the aforesaid plots Nos. 2050-2126 and 2101=2201 (Keoratala Khal), The learned Magistrate was not satisfied that the finally published record of rights in respect of the Keoratala Khal was a piece of reliable evidence within the meaning of Section 139-B (Section 139-A?) of the Code of Criminal Procedure. With regard to the bund over the offset land (2050-2126), the petitioners before me, produced rent receipts granted on behalf of the recorded tenanf Khagen Das Parul. It may be said at this place that the petitioners produced several rent receipts exhibit 6 series and 7 series. The learned Magistrate entered into the details of the matter and has come to the conclusion, that this being the position, and the oral evidence as adduced by the first party, namely, J. L. R. O. have in all fours negatived the contention of the second party-petitioners before me. and this gave rise to his conclusion that the matter under Section 133 Cr. P. C. should be proceeded with. It is not disputed by the learned Advocate, appearing for the opposite party, that actually the revisional settlement record of rights, in so far as the Keoratala Khal is concerned, is in favour of the petitioners, but inasmuch as there is a dispute as to whether this should be treated as a public channel or as a private channel, the learned Magistrate was justified in entering into the merits of the case so far as reliability of the evidence as envisaged in Section 139-B (139-A ?) Cr. P. C. is concerned. As regards the first matter, namely, Keoratala Khal, Mr. Chatterjee, appearing for the petitioners, has argued before me that this Khal was taken settlement of by the petitioners in 1952 from the Latdar Bmoda Moyee Dassi and by virtue of this settlement, it was rightly recorded in the name of the petitioners. His (sic)contention is that the learned Magistrate went beyond his jurisdiction by entering into the question whether there has been any rebutting evidence as to the presumption of correctness arising out of the settlement record of rights. The expression 'reliable evidence' as used in Section 139-B (139-A ?) Cr. P. C. means evidence on which a competent court may place reliance. It does not mean 'evidence' which definitely established the right or claim. This is opposed to proved evidence. It is not disputed by Mr. Chatterjee that such reliable evidence must not be legal evidence but the learned Magistrate has to satisfy himself that the evidence does not appear to be unreliable or forged. Undoubtedly, in so far as the scope of Section 139-B (139-A ?) Cr. P. C. is concerned, it is not the function of the Magistrate to weigh the evidence to come to the conclusion as to whether the alleged right does or does not exist. He should take the evidence as it stands and see whether on the face of it, it could be concluded that the evidence was false and, therefore, unreliable. Such a contingency, in my opinion, does not arise in view of the fact that the settlement record of rights which was recently published was placed before the learned Magistrate and which goes in support of the present petitioners, regarding their private right in support of Keoratala Khal In support of this contention Mr. Chatterjee has placed before me a decision reported in : AIR1931Cal2 , Satish Chandra v. Krishna Kumar. Their Lordships have held inter alia, that
'While on such denial the party denying the existence of the public right produced the record-of-rights in support of the denial and the Magistrate relying thereon and without examining the witnesses produced by the other party stayed proceedings. '
4. In such circumstances, the procedure as adopted by the learned Magistrate was justifiable. Their Lordships in this connection, at p. 958 (of Cal WN) : (at p. 2 of AIR), has further observed with reference to a decision reported in 25 Cri LJ 1080 : (AIR 1926 Cal 268 (1)), Debendranath v. Chairman of the Local Board of Asansol, as follows:--
'Once the settlement record was produced showing that this land was the petitioner's whether that record is right or wrong, the Criminal Court should have stayed the proceedings and left the parties to have their rights decided in a civil suit. '
5. This being the position, I am of opinion that as soon as the second party petitioners produced before the learned Magistrate the record of rights which on the face of it goes to show that the petitioners before me had the present right of possession of Keoratala Khal, it was beyond his jurisdiction to dilate upon this matter by entering into the question whether that presumption arising out of the settlement record of rights has been rebutted in so far as the Keoratala Khal is concerned. My decision in the matter is that on the face of such evidence the Magistrate ought to have considered the settlement record of rights as produced by the second party and this ought to have (sic)been considered as a piece of reliable evidence and as such, the proper course for him was to pass an order for stay of the proceedings till the disposal of the matter by the civil Court.
6. As regards the second matter, it appears, however, from the order of the learned Magistrate that there was controversial points raised before him as to whether the settlement record of rights on the offset land was bona fide or not. In view of the oral evidence, the learned Magistrate found that the plea as raised by the petitioners before me was not sustainable at all as the transactions in the matter of granting receipts appear to be on the face of them colourable. I do not think that the Magistrate ought to have entered into the details in the matter. It is argued by Mr. Chatterjee, appearing for the petitioners, that the entire matter relating to this was placed before the learned Magistrate but he had negatived his contention on the face of the oral evidence adduced on behalf of the first party to the effect that the land namely, the offset bund still belongs to the State. In this connection. I would at once refer to sub-paragraph (b) of paragraph 11 of the petition of the petitioners before me. It has been referred to therein that the plot No. 2126 (recent revisional settlement plot) was initially recorded in the name of the petitioners Nos. 1 and 2 by the Assistant Settlement Officer by his order dated 30-4-62, who found the petitioners in possession. Thereafter, the Government preferred an appeal against the said order and the Tribunal by its order dated 22-12-62 was pleased to send back the case to the learned A. S. O. for fresh decision thereon and the said proceedings are still pending before the A. S. O. This averment in this petition has not been controverted, in any way, by the State Government and if this be the position, it seems to me that it was improper on the part of the learned Magistrate to enter in to the pros and cons as to the factum of possession by the petitioners vis-a-vis., the State Government. This being the position, until a decision is made by the Assistant Settlement Officer, the receipts as produced by the petitioners about the factum of his possession should have been for the purpose of enquiry under section 139-B (139-A ?) Cr. P. C. considered as a 'reliable evidence' as opposed to 'proved evidence' in this matter.
7. Regard being had to the facts and circumstances stated above and the position of law, I am of opinion, that the Magistrate was wrong in passing his order dated 23rd November, 1964, directing that the matter relating to the proceeding under Section 133 Cr. P. C. should be proceeded with.
8. The order is, accordingly, set aside and the learned Magistrate is directed to stay the proceedings until the matter as to the existence of any public right has been decided by a competent court.
9. In the result, the Rule is made absolute in the aforesaid terms.